


BRARY OF CONGRESS. 

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UNITED STATES OF AMERICA. 






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The Chautauqua Litei'ai'il and ^ciBntific GiM^. 



STTJIDIES FOR 1891-93. 



Leading Facts of American History. Montgomery, - . - $i oo 
Social Institutions of the United States. Bryce, - - - i oo 

Initial Studies in American Letters. Beers, - . . . i oo 

Story of the Constitution of the United States. Thorpe,* - - 60 
Classic German Course in English. AA/ilkinson, - - - - i 00 
Two Old Faiths. Mitchell and Muir, ...... 40 



THE STORY OF THE 

CONSTITUTION OF 

THE UNITED STATES 



FRANCIS NEWTON THORPE 

School of American History, University of Pennsylvaiiia 

AUTHOR OF 

The Governnie7it of the People of the United States 




f (^ 



1 



NE\A^ YORK 

CHAUTAUQUA PRESS 

C. L. S. C. Department, ISO Fifth Avenue 

1891 






The required books of the C. L. S. C. are recommended by a Council 
of Six. It must, however, be understood that recommendation does not 
involve an approval by the Council, or by any member of it, of every 
principle or doctrine contained in the book recommended. 



Copyright, 1891, by Hunt & Eaton, New York. 



®o ittj] iilcrtl)cr 



The Constitution is intended to endure for ages to come, 
and consequently to be adapted to the various crises of human 
affairs. Let the end be legitimate, let it be within the scope 
of the Constitution, and all means which are appropriate, which 
are plainly adapted to that end, which are not prohibited, but 
consist with the letter and spirit of the Constitution, are con- 
stitutional. — Chief -Justice Alarshall. 



CONTENTS. 



CHAPTER I. PAGE 

How THE Struggle Over the Taxing Power in America Led to 
THE Formation of Constitutions of Government in the States. 
1 606-1 77G : 9 



CHAPTER II. 



% 



How the States Formed a Confederation which Fell to Pieces 
Because it Had no Taxing Power. Hte-ltSQ 60 

CHAPTER III. 

How the National Constitution was Made, Conferring all nec- 
essary Powers on the National Government. 1187 Ill 

CHAPTER IV. 

How THE National Constitution Became the Suprejie Law of 
the Land. 1787-1870 148 

The Constitution of the United States 178 

Map of the United States in 1790.. ... facing title 

Index 207 



THE STORY OF THE CONSTITUTION 

OP THE 

UNITED STATES* 



CHAPTER I. 

HOW TFIE STRUGGLE OVER THE TAXING POWER IN AMERICA 
LED TO THE FORMATION OF CONSTITUTIONS OF GOVERN- 
MENT IN THE STATES. 

1606-1776. 

After more than a hundred years of general prosperity 
under the Constitution of the United States it is difficult to 
realize that our country ever suffered for lack of a cen- 
tral government or for want of a supreme law. The national 
Constitution and the laws and treaties made in accord- 
ance with it are now accepted as the most solemn expres- 
sion of the sovereign will of the people; the "more perfect 
union" is historical, not sentimental; "the general welfare " 
is a national policy, not a proj)Osition in a plan of govern- 
ment. By the national Constitution are tried the constitu- 

* Authorities Consulted: Elliot's Debates in the Federal Convention of 
1781, 5 vols. ; Lippincott, Philadelphia, 1881. ^Yates's and Lansing's iVbfes, 
1 vol.; Albany Edition, 1821. Luther Martin's Genuine Information, in 
Elliot. History of the Celebration of the One Hundredth Anniversary of the 
Prormdgation of the Constitution of the United Slates, edited by Hampton L. 
Carson; Lippincott, Philadelphia, 1889. Journal of Virginia Convention of 



10 SUPREME AUTHORITY OF THE CONSTITUTION. 

tions of States, the acts of legislatures, the laws of Congress, 
and the decisions of courts of justice. To the national Con- 
stitution may every inhabitant of the land appeal for the 
protection of his civil rights. In conformity with the na- 
tional Constitution civil authority is administered throughout 
the land and the vast macliinery of government performs its 
prescribed work. By the terms of this venerable instrument 
do Congresses have succession; President follows President; 
the body of learned men who constitute the federal courts 
has perpetuity; elections bring into passing eras of popular- 
ity and power the fateful administrations of political parties; 
domain is added to domain westward to that mysterious 
South Sea whose pacific waters were first vexed by a Euro- 
pean keel scarcely three centuries ago; the land of the first 
republic of modern times becomes a land far greater in extent 
than the land of all the republics of antiquity; America be- 

1788; Richmond, 1827. Robertson's DeSafes; Richmond, 1805. The Min- 
utes of the New Jersey Convention, 1787 ; Trenton, Traver Reprint. Mas- 
sachusetts Convention; Boston, 1788. North Carolina Convention; Hillsboro', 
1788. Massachusetts State Constitutional Convention; Boston, 1779; Edition 
of 1832. Constitution of Massachusetts; Worcester, Isaiah Thomas, 1780. 
Pennsylvania State Constitutional Convention, 1776-1790; Harrisburg, 1825. 
Maryland Conventions, IIIA:, 1775, 1776; Baltimore, 18.36. Vermont Stale 
Papers; Slade, Middlebury, 1823. Pennsylvania and the Federal Constitution; 
edited by McMaster and Stone ; Pennsylvania Historical Society, Philadel- 
phia, 1888. Poore's Charters and Constitutions; Government Print, Wash- 
ington, 1876. Jameson's Constitutional Convention, 4th edition; Callaghan 
& Co., Chicago, 1888. Bancroft's History of the Constitution, Vol. I; Apple- 
ton, New York, 1882. McMaster's History of the People of the United States; 
Appleton, New York, 1887. Bowen's Inauguration of Washington, The 
Century Magazine, April, 1889; F. D. Stotie's Ordinance of 1787; Pennsyl- 
vania Historical Society, Philadelphia, 1889. Volume on Population in the 
Tenth Census; Washington, Government Printing Office, 1883. Tlie map 
was re-drawn for this book by C. S. Melntire, of the University. 



S 7MB OLS OF GO VERNMENT. 1 1 

comes the home of all peoples, races, creeds, and languages; 
liberty, intelligence, and industry transform an untouched 
continent into a garden yielding almost every product needed 
by man for his comfort and civilization; and when war has 
shaken the pillars of the State, when the ideas of nationality 
and representative government have been subjected to tlie 
crucial wager of battle, these ideas, as it were serene in diffi- 
culties, have come forth from the terrible trial of practical 
affairs as the type and figure of republican government; the 
national Constitution itself responding to the touch of hu- 
manity, as if the supreme quality of its life were its powei's 
of perpetual adaptation to the wants of man. In the popular 
mind the Constitution seems almost a sentient instrument, as 
were the emblems of government, the palladium of Minerva, 
or the Sibylline books to the citizens of Athens and of Rome. 
The veneration of Americans for the Constitution, a venera- 
tion founded upon their conservatism, is not a veneration for 
a sheet of parchment yellowed by age or preserving the auto- 
graphs of the most eminent men in this country a century 
ago. The veneration for the national Constitution is rather 
like that veneration which all Englishmen feel for the Great 
Charter, an ancient state paper setting forth in most solemn 
form the principles of sound government. Thus the Consti- 
tution is more than a legal document; it is the exj^ression of/ 
the civil life of the American people. As we love our institu- 
tions, as we cherish the memory of our patriotic dead, as we 
triumph in peace, as we strive for better things, as we hope 
to secure the blessings of liberty for ourselves and our pos- 
terity, we interpret that plan of government which finds 
g'eneral expression in the Constitution of the United States. 



12 OPINIONS FAST AND PRESENT. 

The stoiy of the Constitution is of truth stranger than fic- 
tion. It is natural to attribute to an institution throughout 
its history that reputation which it bears in our own day. 
Many men are yet living who remember with startling dis- 
tinctness a time when the Constitution seemed merely a piece 
of parchment; when the fate of the nation was as uncertain as 
the course of battle; when stern necessity compelled so liberal 
an interpretation of the supreme law of tlie land that states- 
men refrained from forming conclusions on the tendency of 
national administration, and, looking hopefully forward, 
sought new meanings in events where before they had sought 
interpretation by a construction of words. Then, and not 
till then, in our history was the Constitution of the United 
States understood in its spirit as being the expression of the 
nation's mind, whatever that mind might be. But no man 
now living can remember the angry days when the Constitu- 
tion was yet a hope or a proposition debated between jealous 
States and still more jealous political leaders. ISTo one can re- 
member the living opinions which, at the close of the eight- 
eenth century, so nearly triumphed, and whose triumph would 
have dissolved a feeble union of States and encouraged the 
horrors of an anarchy only possible in a democracy. When 
the opinions on national government in America to-day and 
opinions of a century ago are contrasted, it is difficult to be- 
lieve that we are the children of our fathers. 

It is my purpose to tell the story of the Constitution of the 
United States. I shall briefly relate how the people of 
the colonies became self-governing communities; how they 
struggled for more than a century and a half with king and 
with Parliament for the control of the taxing power; how 



AMERICAN EXPERIENCE. 13 

they continued a struggle in America wbicli, during a portion 
of our colonial history, had raged in England, and in the 
course of which struggle Parliament had sent one king to the 
block and another, his son, into exile; how in America the 
struggle became a struggle between the power of an English 
Parliament and the power of a colonial assembly; how in 
that struggle every element of discord gathered about the 
taxing power and the power to control trade; how the 
assemblies of thirteen colonies became the legislatures of 
thirteen States, and civil government, based upon American 
exj^erience, was assumed in each of these independent com- 
munities; how the necessities of war compelled the forma- 
tion of a union of the States; how this confederation of 
States yielded speedy proof of its insufficiency for national 
purposes; how the whole people suffered for the want of a 
more perfect union ; how that union was brought about by 
a few men who jjerhaps builded better than they knew; how 
the supreme law of the land was framed in a convention of 
unequaled legislators; how their work was constructed, and 
by what process they brought it to a harmonious conclusion; 
how the Constitution framed in secret was submitted to the 
people for their approval, and how that approval was given 
unhesitatingly or doubtfully, or with many suggestions, or 
with serious conditions, or was flatly refused; how at last the 
Constitution received, technically, the consent of the people, 
and the plan of government which it outlined was carried 
into effect; and how, during a century, this Constitution 
has been changed by amendments adapting it to the civil 
necessities of the people of the United States. In telling this 
story so briefly, more merit is due for what is left out than 



U THE PEOPLE LEGISLATE. 

for what is told, for the full story is long and changing and 
complicated. But the essentials of the whole story may be 
presented in a few words. 

The people of the colonies at the time of the separation 
from England were not unskilled in the science of govern- 
ment. In each colony from its origin civil affairs were ad- 
ministered according to principles fundamental in the Anglo- 
Saxon idea of government. The threefold division of gov- 
ernment into executive, legislative, and judicial was familiar 
to the intelligent men of all the colonies at the time of their 
planting, and this division, which in the beginning of the 
seventeenth century was not definite and discriminating, be- 
came more clearly marked in the colonial governments dur- 
ing the first half of the eighteenth century. That the king 
should not make laws for the people, but that the represent- 
atives of the people should legislate, is an epitome of Amer- 
ican political history down to 1776. In every colony, before 
the time of the Revolution, the control of civil affairs was 
directed by a governor, by a colonial assembly, and by a sys- 
tem of courts. The governor was a2)pointed by the crown, 
except in Pennsylvania, in Maryland, and in Connecticut, and, 
during a portion of its early history, in Massachusetts. The 
Penns and the Calverts governed as lord proprietors under a 
charter from the crown, and the people of Connecticut elected 
their governors by privilege of their charter from Charles II. 
In all the colonies the king was represented, and by a fiction 
of law he was the fountain of civil authority. The judges 
in the colonies were appointed by the governors and com- 
missioned in the name of the king. By a legal fiction, also, 
the king was ever present in his courts; all oaths and affirraa- 



THE LAW OF THE LAND. lb 

tions had reference to royal authority, and all commissions 
and writs ran in the king's name. Thus the governors and 
the judges in colonial America were in a peculiar sense the 
representatives of the monarchical idea. As in ancient times 
Rome sent governors to her provinces, so England, in the 
seventeenth and eighteenth centuries, sent governors to her 
American colonies. But the parallel is not complete ; it was 
the senate of Rome that made laws for her provinces and 
that sent governors to execute her laws and decrees accord- 
ing to the policy of the party or faction in power at the capi- 
tal. No Roman province had its own elected legislature; no 
American colony was without its own popular assembly. ''J'he 
colonial legislatures are an anomaly in history; they existed 
under royal grants, and they exercised an authority repre- 
senting ideas incompatible with that of the divine right of 
kings. Thus it came about in America that there developed 
in the civil organization an idea which was practicable and 
pleasing to the masses and at the same time wholly at variance 
with another idea — the monarchical idea — wliich constituted 
an essential part in the general civil organization. The vari- 
ance was intensified by the existence and vigorous activity of 
an old and pow^erful legislative body for the whole kingdom 
— the English Parliament. Between king and Parliament 
has for centuries raged a contest which constitutes the civil 
and political history of Great Britain. It is an epitome of 
English political history to say that the king must rule ac- 
cording to the law of the land and that Parliament makes that 
law. It may be said further that the law is determined by 
the House of Commons in a last struggle between the two 
houses of Parliament, the balance of power being in the 



16 THE ASSEMBLIES. 

Commons, the elected representatives of the people of En- 
gland. By 1733, Avhen the tlnrteenth American colony had 
been founded, the civil affairs of the colonies had taken on 
tolerably definite civil proj^ortions. Fifty years later, on the 
3d of September, was signed in Paris, by the representatives 
of the United States, of Great Britain, and of France, the 
definitive treaty of peace by which the boundaries and the in- 
dependence of the United States were acknowledged. But in 
1733 at least two of the colonies, Virginia and New York, 
had passed into the second quarter of their second century, 
and civil affairs in all of them had passed into an organization 
well understood and peculiar to America. The seeds of a new 
sovereignty had been sown, and now the plant coukl not be 
rooted out. To the royal governors, to the king, to Parlia- 
ment, the colonial assemblies were offensive. Formed on a 
common experience, and closely after the model of Parlia- 
ment itself, these assemblies, except in New Hampshire, in 
Pennsylvania, and in Georgia, consisted of two houses, known 
generally as the upper house, or the Council, and the lower 
house, or the Assembly. The upper house usually consisted 
of from six to twenty men, summoned by the colonial gov- 
ernor, to serve for an indefinite time as advisers to the execu- 
tive, just as many years ago was summoned the first body of 
nobles in England as advisers to the king. The Assembly 
consisted of men elected by the qualified voters in the colony. 
This arrangement is characteristic of New Jersey, of New 
York, and of the Southern colonies. The four New England 
colonies elected the delegates to both houses. In these 
colonial legislatures the assemblies, like the Commons in En- 
gland, possessed the balance of power. The Assembly voted 



THE TAXING rOWER. 17 

the taxes and made appropriations of money. Seldom did 
the two houses of a colonial legislature meet under the same 
roof at one time; there were occasionally, and for specific pur- 
poses, joint sessions of the houses. It would be an error, 
however, to compare the colonial to the later State legisla- 
tures. While in theory they are similar bodies they are too 
unlike in their methods of civil procedure in their respective 
fields of free legislation to permit a true parallel. To the 
colonial legislatures, and to the lower house in each of 
those legislatures must we turn if we would understand the 
current and the subsequent constitutional history of th^ 
country and the real causes of the separation from England 
in 1776. In England Parliament alone could lay taxes. As 
a part of the British Empire the American colonies were sub- 
ject to taxation by Parliament. It is an axiom in government 
that the tax-levying body possesses supreme power in the 
State. There are reasons for this. The power to levy a tax 
implies the power of controlling the labor of men — in other 
words, the power of controlling men themselves. The poAver 
of levying taxes in the colonies was exercised by the assem- 
blies, and that power came to reside in them by a course of 
events not anticipated by the kings who granted charters to 
the founders of the colonies, nor by the Parliaments which 
witnessed the origin and growth of infant States under these 
charters. The story of government in America is never 
plainer than when that story tells how the struggle for the 
taxing power and the later struggle about the exercise of that 
power at last resulted in the formation of the " more perfect 
union " under the present national Constitution. The first 
phase of that struggle was to determine where the power lay; 



18 THE TWO COMPANIES. 

the second phase is how tliat power shall be exercised. The 
first phase is a part of a larger sentiment, the idea of govern- 
ment itself and on what principles government shall be organ- 
ized; the second phase is a part of that larger and still dis- 
puted problem, how government shall be administered. The 
first phase characterizes the colonial period of American his- 
tory; the second phase the national period. 

The entire colonial period, during which the principles on 
which representative government in America were deter- 
mined, is illustrated by the growth of govermnent in Vir- 
ginia. In 1606 King James I. granted a charter to " Sir 
Thomas Gates and Sir George Somers, knights, Richard 
Hackluit, clerk. Prebendary of Westminster, and Edward 
Maria Wingfield, Thomas Hanham and Ralegh Gilbeit, 
Esqrs., William Parker and George Popham, gentlemen, and 
divers others of our loving subjects, ... to make habitation, 
plantation, and to deduce a colony of sundr}^ our people into 
that part of America commonly called Virginia." At that 
time nearly all of North America was " commonly called 
Virginia." To these incorporators and others named in the 
charter the king gave a region of country as definite in 
boundary as his geographical knowledge of Virginia permit- 
ted. The charter was a grant to two companies : to Gates 
and his associates, describing them as the London Company, 
and to a second company, to be known as the Plymouth, 
consisting of Gilbert, Parker, Popham, and others, of the 
town of Plymouth, in England. By the charter each colony 
was to " have a Council which shall govern and order all 
matters and causes which shall arise, grow, or happ'en to or 
within the same several Colonies, according to such Laws, 



THE FIRST CHARTER. • 19 

Ordinances & Instructions as shall be in that behalf, given 
and signed with Our Hand or Sign Manual, and pass under 
the Privy Seal of Our realm of England; Each of which 
Councils shall consist of thirteen Persons to be ordained, 
oade, and removed from time to time according as shall be 
clirected and comprised in the same Instructions; And shall 
have a several Seal, for all Matters that shall pass or concern 
the same several Councils; Each of which Seals shall have 
the King's Arms engraven on the one Side thereof, and His 
Portraiture on the other; And that the Seal for the Council 
of tlie said first Colony shall have engraven round about, oi^ 
the one Side these "Words : Sigillmn Regis MagucB Britan- 
-nlcB, FranclcB S Hlbernke / * and on the other Side this 
Inscription round about : Pro Concillo Primm GolonlcB Vir- 
glnice.'''' f In this commercial grant originated representa- 
tive government in the United States. Tlie charter gave 
authority from the crown to pursue specified activities in 
Virginia. These activities were comuiercial and industrial 
rather than political in their nature; but not wholly com- 
mercial or industrial, for political interests are implied in all 
economic affairs. The council of thirteen in England was a 
body of directors empowered to act by their charter, and 
limited only by the charter. Civil matters were provided 
for in the assurance that all persons taking up residence in 
Virginia and all persons born there were to enjoy all liber- 
ties and franchises and immunities as if living in England. 
By this first charter the trading company was empowered to 
make laws and ordinances for the direction of its affairs, 

* Seal of the king of Grreat Britain, France, and Ireland. 
f For the council of the first colony of Virginia. 



20 TEE SECOND CHARTER. 

subject to the king's revision and approval, and to grant 
land to colonists at a rent to be fixed by tlie company. But 
thus far there is no provision for a colonial legislative body. 
The ordinances of the company made in England were to be 
the laws for the settlers in Virginia. This plan failed on 
trial, and principally because it was a money-making scheme 
under the control of a chartered monopoly, a monopoly rep- 
resented by two companies, the London Company and the 
Plymouth Companj''. It failed because no homes in Vii'ginia 
were set up under its provisions. It literally concerned " a 
body of adventurers." The few persons who came to Vir- 
ginia had no intention of remaining there ; they were not 
Americans; they were not colonists. They Avere Londoners 
in search of wealth. 

In 1609 the king granted a second charter. A more 
definite domain was named. The commercial purpose of 
the adventure was more sj^ecitically set forth. It had been 
found " not convenient " that all the adventurers should be 
drawn to meet and assemble so often as should be necessary 
for them to have meetings and conferences about the affairs 
of the colony ; therefore one council was to reside by per- 
petual succession in England, and it was empowered " to 
make, ordain, and establish all Manner of Orders, Laws, Di- 
rections, Instructions, Forms & Ceremonies of Government 
and Magistracy, fit and necessary for & concerning the 
Government of the said Colony and Plantation." The laws 
made by this council fi3r the colony were to be "as conven- 
iently as may be " " agreeable to the Laws, Statutes, Gov- 
ernment and Policy of the . . . Realm of England." A brief 
experience had demonstrated the meaning of the phrase " as 



THE THIRD CHARTER. 21 

conveniently as may be;" the great distance from England 
and the new conditions -of life in Virginia making neces- 
sary this permission of a use of legislative discretion in the 
council of the company in England. 

But the colony did not prosper. The inconvenience was 
still too great that affairs in Virginia should be wholly di- 
rected to minutest details by a council of directors living in 
England. The whole adventure was reorganized, and the 
king granted a third Virginia charter in 1G12. 

By this charter the treasurer and company of adventurers 
in Virginia were empowered once every week or oftener, ^ 
their pleasure, to hold and keep a court and assembly for 
the better order and government of the j^lantation and such 
things as might concern it. But this frequent court was to 
consider only ordinary matters. " Matters and Affairs of 
Greater Weight and Importance and such as in any Sort 
(should) concern the Weal, Publick and General Good of the 
said Company and Plantation, as namely the Manner of 
Government from Time to Time to be used, the Ordering 
and Dispensing of the Lands and Possessions and the Set- 
tling and Establishing of a Trade there, or Such like," were 
to be considered every year, iipon the last Wednesday save 
one of Hillary Term,* Easter, f Trinit}^ J and Michaelmas, § 
in " a Great, General and Solemn Assembl}^," the four as- 
semblies being " Stiled & Called The four Great & General 
Courts of the Council and Company of Adventurers for Vir- 
ginia." These four courts were magisterial in character 

* January 11-31. f Movable. 

j^ Formerly mov.able, now occurring from May 22 to June 12. 

§ Formerly movable, now November 2-25. 



22 REPRESENTATIVE GOVERNMENT. 

ratliei' than legislative, but convenience and necessity com- 
pelled a modification or adaptation of the " solemn Assem- 
bly" to the conditions of colonial life. From the language 
of the third charter it is evident that the treasurer and other 
members of the company elected membei-s of this Assembly', 
and their successors were to enact their laws in conformity 
with the laws of England. The charter further provided 
that " in all Questions and Doubts that (should) arise upon 
any Difficulty of Construction or Interpretation of any thiug 
contained in these or any other (our) former Letters-patent, 
the same should be taken and interpreted in tiie most ample 
and beneficial Manner for the said Treasurer and Company 
and their Successors." The power of so liberal a construc- 
tion of the charter was soon exercised. The colonists who 
were members of the company were empowered by the 
charter to assemble by rej^resentation. A formal and 
special oath was to be administered hy the treasurer, his 
deputy, or by any two of the council, to all persons in the 
service of the colony; the earliest instance of the adminis- 
tering of an oath of office in this country. Thus the gov- 
ernment introduced into Virginia under the third charter 
was essentially republican in character, if not so in strict 
form; for legislative power was taken from the exclusive 
control of the body of colonial directors and given to a 
General Assembly of the qualified electors of Virginia who 
acquired the right to exercise those political poAvers hitherto 
limited to the qualified electors of England. The Virginia 
colonist became an elector by joining the Virginia body of 
colonists and subscribing to the oath required by the com- 
pany. His electoral qualifications were the oath and the 



PROPERTY QUALIFICATIONS. 23 

ownership of land to an amount specified from time to time 
by the Assembly. He was also required to belong to the 
Established Church of England. Similar qualifications for 
electors were requii'ed in England ; but the limitations on 
land-holding in England made the number of electors there 
far less in j^roportion to population than was the number in 
the colony-. Frequently it will be necessary to refer to the 
qualifications of the elector in America; nor until the eight- 
eenth century is nearly past will the abolition of property 
qualifications find expression in the liberal provisions for 
citizenship under the Constitution of the United State|L 
That ownership of land was a prerequisite in Virginia at 
the time of the third charter for the possession of the fran- 
chise is explicable, not alone from the fact of most ancient 
precedent in England, but because a man, not capable of 
seci^ring and cultivating land in Virginia, or in the later 
colonies, as they successively were founded and their elec- 
tion laws were established, was thought to be unworthy of 
possessing and exercising political power. The ownership of 
real estate indicated plainly the amount of a man's responsi- 
bility in the community. It should not be forgotten, in fol- 
lowdng the story of government in England or in America, 
that the modern democratic idea of the franchise, " A man 
should vote because he is a man," was unknown until the 
nineteenth century had entered ujDon its fourth decade. Gov- 
ernment is founded upon persons and jDroperty, and until quite 
recent times this property has been real estate rather than per- 
sonal property, it being thought that the estimate of property 
values could be made in no simpler way than by an estimate of 
the value of real estate. Personal property is now a large pro- 



24 THE BASTS FOR REPRESENTATION: 

jjortion of the whole amount of the works's wealth. At the 
time when the foundations of government were laid in Amer- 
ica personal jDroperty bore only a trifling proportion to the 
whole amount of wealth in a community. Stocks, certificates, 
bonds, shares, negotiable paper, now comprising perhaps 
two fifths of the wealth of society, were unknown to the 
men who founded States in America. Then the basis for 
property representation was real estate, now the basis is 
both on real estate and on personal property, though with 
the enormous increase of personal property no corresponding 
increase of tax burden has been laid upon it,* the land still 
remaining the foundation of our taxing systems. Had per- 
sonal property been as abundant or as valuable in the seven- 
teenth as in the nineteenth century doubtless the property 
qualification required of an elector would have included a 
qualification based on personal property. As personal j^rop- 
erty gained in value in America the State legislatures, as in 
Rhode Island, m&de the privilege of the franchise obtainable 
according to an income fixed by the legislature; and many 
States, before the property qualification was abandoned in 
this country, had begun to admit as electors all men, other- 
wise qualified, who paid taxes on an income derived from 
personal joroperty thought to be sufficient to equal the 
former values set on real estate. In Pennsylvania and in 
Mississippi the payment of certain taxes is still required 
before a man can vote. But in no State of the Union does 
a property qualification for electors now exist. 

I have quoted from the Virginia charters in order to make a 
beginning of the story of the Constitution. Remote as this 
beginning may at first seem from the time of the framing of 



THE FIRST GENERAL ASSEMBLY. 25 

our national Constitution, it is plain that as soon as tlie 
third charter of Virginia was put into ojieration in the colony 
the idea of a republican form of government had taken root 
in America. The right to vote was conferred on the mem- 
bers of the company, which was enlarged to include English- 
men, strangers, and aliens. Apprentices, servants, slaves, 
and persons not admitted to the company could not vote. 
But the beginning of representative government was made. 

In April, 1619, Sir George Yeardley became governor of 
Virginia. He abrogated the military code which had grown 
up under successive governors and jiroclairaed the " fre^ 
laws " — that is, the common law of England. And " that the 
planters might haA'e a hand in the governing of tliemselves," 
it was granted that "a General Assembly should be held 
yearly once ; whereat were to be present the governor and 
council and two burgesses from each plantation, freely to be 
elected by the inhabitants thereof; this Assembly to have 
power to makti and ordain whatsoever laws and orders should 
by them be thought good and profitable for their subsist- 
ence." The number of burgesses from each plantation was 
suggested by the two burgesses which from time immemorial 
had represented the old English shires in the House of Com- 
mons or in the earlier jDopular assemblies of the kingdom. 

Of the proceedings and acts of this first General Assembly 
in America little is known. The governor and his council 
sat with the burgesses and participated in the proceedings. 
The speaker chosen was not a burgess, although he Avas a 
councilor, and the secretary of the colony. Observing the 
forms of parliamentary procedure, the Assembly opened with 
prayer. It examined the qualifications of its elected mem- 



26 THE FIRST AMERICAN CONSTITUTION 

bers; it passed laws concerning drunkenness, idleness, and 
card-playing; it fixed llie price of tobacco, the staple of the 
colony; it formally accepted the charter of 1612 on behalf 
of the colony, and further declared that the laws of the 
Assembly should be the supreme laws of Virginia without 
submitting them to the council of the company in England. 
This historic Assembly assembled at James City, on Friday, 
the 30th of JuW, 1619, and eleven plaiitations, or, as may be 
said, parishes or counties, were represented. The division 
of government was not exact, for this Assembly sat as a 
court as well as a legislative body. But the people of the 
colony were pleased. In their own midst civil government 
was set up ; familiar institutions were about them, and 
thenceforth Virginia was their country and their home. 
Two years later, on the 24th of July, the council of the 
company in England apjjroved the course of the Assembly 
by passing an ordinance establisliing a written constitution for 
Virginia. Tliis earliest written constitution for an American 
commonwealth was modeled after the unwritten constitution 
of England, and it is the historical foundation for all later 
constitutions of government in this country, " The greatest 
comfort and benefit to the people, and the prevention of 
injustice, grievances, and oppression," is the language of the 
ordinance declaring the purpose of the new constitution, and 
it suggests not only the language of familiar provisions in the 
declarations of rights in the subsequent State constitutions, 
but also the comprehensive 2:)reambJe of the Constitution of 
the United States, Avritten one hundred and sixty years later 
— that Constitution due perhaps more than to any oilier indi- 
vidual to a distinguished Virginian, James Madison. 



CHECKS AND BALANCES. 27 

Between tlie General Assembly in Virginia and the council 
of the company in England was a mutual agreement that 
the acts and laws passed by either body should not take ef- 
fect unless ratified by the otlier— -the first instance in this 
country of the introduction of a system of " checks and bal- 
ances " in government. The provision may be described as 
the first introduction of the veto power in America. With 
the entrance of the burgess into civil power by the choice of 
the qualified citizens began popular government on this con- 
tinent, and not popular government alone, but also the 
struggle between king and people — between the monarchicaL 
idea and the republican idea; a struggle which terminated 
at last in the independence of the United States and the 
definitive treaty of 1783. But between 1G19 and 1783 popu- 
lar assemblies had sprung up in all tlie American colonies, 
had assumed specific functions, and had come to exercise im- 
portant powers. Of import second to no other exercise of 
power was the right claimed and exercised by the lower 
house of the colonial legislatures to levy taxes and to appi'o- 
priate public moneys. This peculiar right claimed by the 
assemblies found its precedent in the House of Commons. 
The delegates to the colonial assembly represented the 
electors, the people — the sovereignty newly enthroned in 
America. Custom made stronger year by year the powers 
exercised at first with shyness b}^ the delegates in the as- 
semblies. But custom and the acquiescence of the British 
government rajjidly strengthened the confidejice of the as- 
semblies in their right to levy taxes. By the time Georgia 
was founded all the colonies were familiar with the- idea tliat 
taxes and appropriations of public money should be con- 



,28 COLONIAL ASSEMBLY VERSUS KmO. 

trolled by the delegates in the lower house. The roy:d gov- 
ernors constantly objected to this assumption of jDOwer by 
the assemblies, but the royal governors had read English 
history. The kings had lost in their contest with Parlia- 
ment for the power to lay taxes. From King John 'had 
been wrested the Great Charter in 1215, and thenceforth it 
was declared that the king must rule according to the law 
of the land. In 1649 Charles I. had lost his life in 
his attempt to govern without a Parliainent and to levy 
taxes in his own name. George III. did not renew the 
struggle with the colonial assemblies, nor did any English 
monarch from the first Charles to the third George attempt 
to renew it. Perhaps the king dimly foresaw that counter- 
revolution in America which was to wrest from an " omnipo- 
tent Parliament " a taxing power claimed by the rej^resent- 
atives of the people in the colonial houses of assembly. 
Perhaps the royal mind dimly caught the significance of the 
mortal blow against that Parliament Mdiich kings in England 
had not been able to Avield when kings in England would 
have wielded that blow against the welfare of the jDcople, 
but which popular assemblies in America were able to wield 
against that parliamentary body which had succeeded to the 
triumphs won by Parliaments over kings. The revolution of 
iVYe was unlike the revolution of 1648. In England King- 
Charles would levy shi2>money; in America it was Parlia- 
ment that would levy ship-money. England was willing in 
1648 that Parliament should levy ship-money, and America 
in 17*76 that a Parliament should levy ship-money; but the 
Parliament in 1776 must be a General Assembly, a lower 
house of the colonial legislature, the true American Parlia- 



TAXES AND HOME RULE. 29 

raent. Therefore the War of the Revolution was not a war 
against King George III,; it was a war for a principle 
wliicli in our clay is called local self-government, or home 
rule. That the British Parliament had the lawful right to 
levy taxes in the American colonies is true. That the colo- 
nies cared to be represented in Parliament by delegates 
chosen by the qualified electors in America is not wholly 
true. Such a representation was desired by some Americans, 
and such a representation w^as theoretically possible ; but it 
was practically impossible. The inconvenience of such a 
system was too great to make it practicable. It became 
necessary that legislative powers should be exercised in the 
colonies, by the colonies, and for the colonies It has been 
customary now for many years to consider the American 
Revolution as a political revolution chiefly, as a struggle 
by the colonists to obtain the right to vote and to have 
representation. It was a political revolution and a mighty 
change in the politics of the world, but it was even more 
mighty as a social and an industrial revolution, and in a last 
analysis it must appear that the political significance of the 
whole war depended upon and followed and took meaning 
from the industrial, the economic conditions of America and 
the Americans during the first half of the eighteenth cent- 
ury — conditions which had been in process of identification 
ever since the organization of government in the oldest 
colony. The whole dispute was a dispute about taxes; not 
a dispute that taxes be laid or not laid, but a disunite as 
to who should levy them; nor was it denied that a legislative 
body should levy them. The question was, which legislative 
body, the English Parliament, or the American Assembly? 



80 THE FIRST AMERICAN CONVENTION. 

But the Americans were not guilty of undue haste in 
their journey from the house of dependence to the " new 
I'oof" of nationality. On October 7, 1765, twenty-eight 
delegates from all the colonies except Virginia, New Hamp- 
shire, Georgia, and North Carolina, summoned at the sug- 
gestion of the legislature of Massachusetts, met in the City 
Hall in New York to take into consideration the state of 
public affairs. This first American Convention, after a long 
debate, decided to declare that the liberties of America were 
founded, not on royal charters, but- on natural rights; and 
they issued what Judge Story has called "perhaps the best 
general summary of the rights and liberties asserted by all 
the colonies." This declai-ation of October 19 sets forth 
ideas repeated subsequently at length in the declaration of 
1774, and again, more comprehensively, in the declaration of 
1776, "That it is inseparably essential to the freedom of a 
people . . . that no tuxes be imposed on them but with 
their own consent, given personally or by their representa- 
tives;" and "that the people of these colonies are not and 
from their local circumstances cannot be represented in the 
House of Commons in Great Britain." The whole question 
of taxation was comprised in the resolution, "That the only 
representatives of the people of these colonies are persons 
chosen therein by themselves; and that no taxes ever have 
been or can be constitutionally imposed on them but by their 
respective legislatures." 

Meantime Parliament had laid an indirect tax on the 
Americans. The tax on tea affected, it was thought by its 
English originators, only those who consumed tea ; the tax 
on legal papers only the litigious people who had business 



THE FIRST CONGRESS. 31 

in the courts. The Stamp Act of 1765 brought face to face 
the two contending powers — tlie power in Parliament and 
the power in the colonial assemblies to tax the Americans. 
The Revolution had begun. It began not with fife and 
drum and battles between armed men. It began in the as- 
semblies and among their constituents, the people. On the 
5th of September, 1774, an assembly of delegates met at 
Philadelphia, consisting of men appointed by the lower house 
of the colonial legislatures or specially chosen by popular 
conventions. This assembly was the first Continental Con- 
gress. It organized a revolutionary government and forbade ^ 
further commerce with England. On the 10th of May of 
the following year the second Congress assembled in the 
same historic city. Nearly all of its members were chosen 
by conventions specially called by the people. This Congress 
organized an army and a navy; created a treasury depart- 
ment; established a postal service, and issued the Declara- 
tion of Indejiendence. 

The people in their colonial assemblies had seized the 
citadel of government many years before, and it was only a 
matter of time when independence would be claimed and 
acknowledged. From 1619 to 1775 every colony became 
familiar with the forms, the pi'ocedureSj and the legislation 
of organized governments based ujDon the idea of popular 
representation. It was not disputed that the assemblies 
should control taxation. Retrogression was impossible. To 
king and to Parliament the assemblies had become not 
merely offensive, but menacing. The " injuries and usurpa- 
tions all having in direct object the establishment of an ab- 
solute tyranny over these States," as set forth in the Decla- 



S2 KING AND PRESIDENT. 

ration of Independence, ai-e nearly all concerning the laws or 
the legislative jjowers of the colonial assemblies. The acts 
of these assemblies Avere described as " wholesome and nec- 
essary for the i:)ablic good," and the accusation against the king 
was his refusal to give his assent to these laws. A parallel 
would not be wholly wanting if, in case a President of the 
United States should veto some piece of popular legislation 
in Congress, the leaders in that legislation should remonstrate 
to the President and comi:)lain that he had refused his assent 
to laws " wh'olesome and necessary to the public good." But 
the parallel fails badly Avhcn it is pursued to any length. 
The time may come when the American historian may find 
a parallel between the accusations against George III. 
and the accusations against President Johnson, the accusa- 
tions in either case being grounded on a dispute concernhig 
legislative and executive functions. In the case of the Presi- 
dent the accusations Avere drawn by a committee of Con- 
gress; in the case of the king they were drawn by a com- 
mittee of the people of the colonies constituting a Congress. 
But the conclusion of the whole matter in these two cases 
was unlike: the king lost; the President won. The king 
lost because, with Parliament, he was hindering the progress 
of representative government among the colonies, where that 
government, already long established, must necessarily de- 
velop national independence. The President won because, 
in a struggle between the executive and a party in Congress, 
the independence of the executive was endangered, and Con- 
gress was unwilling to establish a precedent which might 
work untold mischief in the country. The impeachment of 
President Johnson was not an impeachment because he 



CHARGES A GAINST THE KING. 38 

sought to levy taxes without the consent of Congress, be- 
cause he could not levy taxes with the consent of Congress. 
The impeachment of the President was on grounds that he 
had refused to execute certain laws passed by Congress, 
or had executed tiiese laws in a manner not intended by 
Congress. The accusation against King George III. was 
liis refusal to assent to laws made for the public good after 
the colonial assemblies had passed them. In each instance 
the accusation touches on the assemblies; nor should any 
person who seeks to understand the story of government in 
the United States hope to understand it without reading and 
re-reading these solemn charges in the Declaration of 1776, 
which bring into just prominence the central idea of the 
Avhole struggle — the taxing power in the colonial assem- 
blies. In foimulating their charges against the king, Avho 
stands for both king and Parliament, the framers of the 
Declaration affirm: 

" He has forbidden his governors to pass Laws of imme- 
diate and pressing importance unless suspended in their 
operation till his assent should be obtained; and when so 
suspended, he has utterly neglected to attend to them. 

" He has refused to pass other Laws for the accommoda- 
tion of large districts of people, unless those people would 
relinquish the right of Representation in the Legislature, a 
right inestimable to them and formidable to tyrants only. 

" He has called together legislative bodies at places un- 
usual, uncomfortable, and distant from the depositor}'^ of 
their Public Records, for the sole purpose of fatiguing them 
into compliance with his measures. 

" He has dissolved Representative Houses repeatedly, for 
3 



S4 THE A ecus A TWN. 

opposing with manly firmness his invasions on the rights of 
the people. 

" He has refused for a long time, after such dissolutions, 
to cause others to bo elected ; whereby the Legislative 
Powers, incapable of Annihilation, have returned to the 
People at large for their exercise; the State remaining in 
the meantime exposed to all the dangers of invasion from 
without and convulsions within. 

" He has endeavored to prevent the population of these 
States ; for that jjurpose obstructing the Laws for Naturali- 
zation of Foreigners ; refusing to pass others to encourage 
their migration hither, and raising the conditions of new 
Appropriations of Lands. 

" He has obstructed the Administration of Justice, by 
refusing his Assent to Laws for establishing Judiciary 
Powers. 

"He has made Judges dependent on his AVill alone, for 
the tenure of their offices, and the amount and payment of 
their salaries. 

" He has erected a multitude of New Offices, and sent 
hither swarms of Officers to harass our People, and eat out 
their substance. 

" He has kept among us, in times of peace, Standing 
Armies without the Consent of our legislature. 

" He has affected to render the Military independent of 
and superior to the Civil Power. 

" He has combined with others to subject us to a juris- 
diction foreign to our constitution, and unacknowledged by 
our Laws; giving his Assent to their Acts of pretended 
Legislation : 



CHARGES AGAINST THE KING. 35 

" Fur quartering large bodies of armed men among us: 

" For protecting them, by a mock Trial, from Punishment 
for any Murders which they should commit on the Inhab- 
itants of these States: 

" For cutting off our Trade with all parts of the world: 

"For imposing taxes on us without our Consent: 

" For depriving us, in many cases, of the benefits of Trial 
by Jury: 

" For transporting us beyond Seas to be tried for pre- 
tended ofrenses: 

" For abolishing the free System of English Laws in a^ 
neighboring Province, establishing therein an Arbitrary gov- 
ernment, and enlarging its Boundaries so as to render it at 
once an example and fit instrumetit for introducing the same 
absolute rule into these Colonies: 

" For taking away our Charters, abolishing our most val- 
uable Laws, and altering fundamentally the Forms of our 
Governments: 

'• For suspending our own Legislatures, and declaring 
themselves invested with Power to legislate for us in all 
cases whatsoever. 

" He has abdicated Government here, by declaring us out 
of his Protection and waging War against us." 

Much might be Avritten in exposition of these charges, but 
the substance of all exposition is the evidence that the essen- 
tial difference between the colonists and the English govern- 
ment was concerning legislation in the colonial assemblies. 
King and Parliament wished to get rid of the assemblies, 
and the assemblies wished to get rid of king and Parliament. 
The legal right of Parliament to tax the Americans is indis- 



36 ENGLAND'S WANTS. ■ 

putable, but the Americans had outgrown their willingness 
to submit to that legal right. They thought that to tax 
themselves was their natural right ; and to tax themselves 
was essentially to govern themselves. Parliament and king, 
like Caesar when he crossed the Rubicon, had the law technic- 
ally on their side; but the Americans believed that the law 
was wrong. For a brief time in the historj^ of the four 
Georges king and Parliament united in a common cause 
against the rebellious Americans ; but events, complex in 
their nature and international in importance, dictated strange 
results. The lack of great soldiers in England cut the king- 
dom off from services in America such as earlier in the cent- 
ury had been done by Marlborough in the Low Countries, or 
a generation later in the early years of the nineteenth century 
were done by Wellington in Spain and in Belgium. The 
possible service of Lord Clive in America was prevented l>y 
his siidden and terrible death, or perhaps Washington and 
Greene would have met a leader worthy of their powers. The 
distance of the field of operations from England ; the bitter- 
ness of political factions in Parliament when the cause of 
America had broken the ti-ansient solidarity of opposing sen- 
timent ; the French alliance; the unflinching perseverance 
of the Americans and their patriotism almost unparalleled; 
and the paradoxical course of affairs in the United States — 
military success and conservatism and unprecedented and 
acknowledged feebleness of the civil authority at the same 
time — are some of the elements and factors which at last 
wrought 'out American nationality. 

The Congress which issued the Declaration of Independ- 
ence was destined to experience strange vicissitudes. By a 



GOVERNMENT TAKEN UP. 37 

succession of delegates, irregularly kept up by the colonies, 
now become States, this Congress kept in session throughout 
the Revolutionary War, exjjiring at last, for want of a 
quorum, a few days before the inauguration, in 1789, of the 
national government under which we now live. 

The second Continental Congress had been in session just 
one year when it passed a resolution recommending each 
colony to form a State government. The critical change 
thus suggested was an easy one. Connecticut and Rhode 
Island were the only colonies Avhicli made no change in their 
civil organization, but continued under their liberal charters. 
These two colonies had long enjoyed the republican form ot 
government. Connecticut, under her old charter of 1662, 
had organized her civil life upon so popular a basis that she 
continued her "frame of government until 1818 almost un- 
changed. Rhode Island, similarly situated, imder her charter 
of 1663, continued her plan of civil organization x;nchanged 
until 1842. But in eleven of the colonies the recommendation 
of Congress " to take up civil government " was followed with 
alacrity. Conventions to form new State constitutions soon 
Avere called, and during the next two years written consti- 
tutions were proclaimed in these eleven States. Massachu- 
setts submitted the work of her convention of 1778 to the 
people, and it was rejected. A second convention was called 
in that State, which was in session from September 1, 1779, 
to January 16, 1780. The constitution made by this con- 
vention was submitted to popular vote, was adopted, and 
remains to this day, with a few unimportant modifications 
adapting it to changed conditions, the fundamental law of 
that State. It is the only constitution of those first made by 



38 STATE CONSTITUTION MAKING THEN AND NOW. 

the States which has survived, and is the oldest written con- 
stitution in America. Nine States did not submit their con- 
stitutions to popular vote. The times were times of war, and 
the conventions which framed the first constitutions inter- 
preted the wants of their States so closely that, without 
doubt, each constitution would have been approved, although 
not with lieavy majorities in some of the States, because the 
revolutionary feeling was not equally strong in all parts of 
America. It is now customary to submit a new constitution 
to the people for ratification. In each of the six new States 
of 1889-1890 tlie constitution Avas submitted to the electors 
and adopted ; in three of the States a sj)ecial clause being 
submitted separately from the body of the constitution. In 
Mississippi the new constitution of 1890 was promulgated as 
iiT force by the convention which framed it. ■ The custom in 
America is submission for ratification. Between 1776 and 
1789 nearly all the States framed new constitutions. But 
only Massachusetts and New Jersey submitted their consti- 
tutions to the test of a popular vote. It was many years in 
some States before a constitution which had received popular 
approval at the polls became the supreme law. The consti- 
tution of New York of 1776 continued in force until 1821. 
Maryland's constitution of 1776 was displaced by her second 
constitution of 1850. North Carolina continued her consti 
tution of 1776 till 1865. New Jersey framed a second con- 
stitution in 18-14. Vermont supplanted lier constitution of 
1785 by another seven years later. The constitution of 
South Carolina of 1790 lasted seventy years. Georgia lived 
under the constitution of 1 788 until it was superseded by 
the constitution of 1839. Delaware framed a constitution in 



EXPEPdENCE DICTATES. 39 

1792 which was in force till ISol. The constitution of 
Penusylvania of 1776 gave place to that of 1789, which was 
approved by the people; and the constitution of 1789 was 
supplanted by a small popular vote by the constitution 
of 1837.* 

In 1776 there was a substantial unanimity of opinion 
throughout the country concerning the essentials of State 
government. Each State put in written form the system of 
government to which it was accustomed or for which the 

* New State Constitutioxs. — The States have framed consiitutions as 
follows (the States are named in the order in which they came into the 
Union) : ^ 

1. Delaware, 1776, 1792. 1831. 

2. Pennsylvania, 1776, 1790, 1838, 1873. 

3. New Jersey, 1776, 1844. 

4. Georgia, 1777, 1789, 1798, 1839, 1868, 1877. 

5. Cnnriecticut, Charter of 1662, Constitnf-on of 1818. 

6. Massacliusetts, 1780. 

7. Maryland, 1776, 1851, 1864, 1867. 

8. Sonth Carolina, 1776. 1778, 1790, 1868. 

9. Now Hampshire, 1776, 1781, 1792, 187G. 

10. Virginia, 1776, 1830, 1850, 1870. 

11. New York, 1777, 1821, 1846. 

12. Nortli Carolina, 1776, 1868, 1876. 

13. Rhode Island, Charter of 1663, Constitution of 1842. 

14. Vermont, admitted March 4, 1791, Free. Constitutions, 1776, 

1786, 1793. 

15. Kentuck)'-, admitted June 1, 1792, Slave. Consiitutions, 1792, 179:"), 

1850, 1891. 

16. Tennessee, June 1, 1796, Slave. 1834, 1805, 1870. 

17. Ohio, November 29, 1802, Free. 1S51. 

18. Louisiana, April 30, 1812, Slave. 1845, 1852, 1868, 1879. 

19. Indiana, December 11, 1816, Free. 1851. 

20. Mississippi, December 10, 1817, Slave.' 1832, 1868, 1890. 

21. Illinois, December 3, 1818, Frre. 1848, 1870. 

22. Alabama, December 14, 1819, Slave. 1867, 1875. 
2.3. Maine, March 15, 1820, Free. 



40 THE CONSTITUTION OF MASSACHUSETTS. 

colony liad been striving for many years. No mere experi- 
ments were made. If the constitution of Massachusetts may 
be cited for ilhistration — and it differed but slightly from other 
State constitutions framed in the eighteenth century in Amer- 
ica — the course of constitution-making in the States from 1776 
to 1790 is plain. A preamble declares the purpose of gov- 
ernraent "to secure the existence of the body politic; to 
protect it; and to furnish the individuals who compose it 
with the power of enjojdng in safety and tranquillity their 
natural rights and the blessings of life. And whenever 
these objects are not obtained the people have a right to 
alter the government and to take measures necessary for 

24. Missouri, August 10, 1821, Slave. 1865, 1875. 

25. Arkansas, June 15, 1836, Slave. 1868, 1874. 

26. Michigan, January 26, 1837, Free. 1850. 

27. Florida, March 3, 1845, Slave. 1865, 1868, 1886. 

28. Texas, December 29, 1845, Slave. 1866, 1868, 1876. 

29. Iowa, December 28, 1846, Free. 1857. 

30. Wisconsin, May -29, 1848. Free. 

31. California, September 9, 1850, Free. 1879. 

32. Minnesota, May 11, 1858. Free. 

33. Oregon, February 14, 1859. Free. 

34. Kansas, January 29, 1861. Free. (Slave constitution, 1855; free 

constitution in 1857; slave constitution in 1858; a free cousiilu- 
tion in 1859, on which the State was admitted.) 

35. West Virginia, June 19, 1863, Free. 1872. 

36. Nevada, October 31, 1864. Free. 

37. Nebraska, March 1, 1867. 1375. 

38. Colorado, August 1, 1876. 

39. North Dakota, November 2, ] 889. 

40. South Dakota, November 2, 1889. 

41. Montana, November 8, 1889. 

42. Washington, November 11, 1889. 

43. Idaho, July 3, 1890. 

44. Wyoming, July 10, 1890. See the author's Government of the People 

of the United States, p. 294. 



G VERNMENT IN MA SSA CHUSETTS. 4 1 

their safety, prosperity, and happiness. The body jDolitic 
is formed by a vohmtary association of individuals. It is a 
social compact by which the whole people covenants witli 
each citizen and each citizen with the whole people that all 
shall be governed by certain laws for the common good. It 
is the duty of the people, therefore, in framing a constitution 
of government, to provide for an equitable mode of making 
laws as well as for an impartial interj^retation and a faithful 
execution of them; that every man may at all times find his 
security in them. We, therefore, the people of Massachu- 
setts, acknowledging with grateful hearts the goodness of 
the Great Legislator of the Universe in affording us, in 
the course of his Providence, an opportunity, deliberately 
and peaceably, Avithout fraud, violence, or surprise, of enter- 
ing into an original, explicit, and solemn compact with each 
other, and of forming a new constitution of civil govern- 
ment, for ourselves and our posterity, and devoutly implor- 
ing his direction in so interesting a design, Do agree upon, 
ordain, and establish the following declaration of rights and 
frame of government." The declaration of rights in this 
constitution, essentially the same in the other States, sets 
forth the civil rights of the citizens. Fr&e and equal by 
birth, all men have certain natural, essential, and unalienable 
rights: to life and liberty; to property and to happiness; to 
freedom in the worship of God; to free elections and the 
impartial administration of the laws; to jury trial and ex- 
emption from uni'easonable searches and seizures; to liberty 
of the press; to keep and to bear arms; to peaceable assem- 
bling and to petition; to freedom of debate in legislatures; 
to immunity from ex post facto laws — that is, from "laws 



42 LAWS, NOT MElSi. 

made to punish for actions done before tlie existence ol such 
laws and which have not been declared crimes by pi'eceding 
laws;" to freedom from excessive bail or sureties, from ex- 
cessive lines, or cruel or unusual punishments; to exemption 
from the quartering of soldiers in private houses without 
the owner's consent in time of peace, or in time of war save 
as the law may prescribe. These fundamental notions in 
government are set forth in all the State constitutions and 
are to be traced in enactments by colonial assemblies, to 
provisions in the English Bill of Rights of 1689, to the 
Great Charter, or to the unwritten law of England; and 
many of them to a time in Anglo-Saxon history beyond the 
memory of man. They represent settled ideas of govern- 
ment; they are no longer disputed; but they were the prin- 
cipal subjects of dispute down to the close of the eighteenth 
century, both in Europe and in America. 

"In the government of this Commonwealth," continues 
the constitution of Massachusetts, "the legislative depart- 
ment shall never exercise the executive and judicial powers, 
or either of them; the executive shall never exercise the 
legislative and judicial powers, or either of them; the ju- 
dicial shall never exercise the legislative and executive 
powers, or either of them; to the end it may be a govern- 
ment of laws and not of men." 

The legislative powers were vested in the general court, 
formed by two branches, a Senate and a House of Repre- 
sentatives. The legislature assembled aimually and passed 
all laws adjudged necessary for the welfare of the people of 
the Commonwealth. There was no limitation on the legisla- 
ture, as is so commonly found in all State constitutions made 



Q UA LIFICA TIONS. 43 

during the last thirty years. The governor revised each law, 
aud if he approved it he signed it; if he did not approve it 
he returr.ed it with his objection to the house in which it 
originated. The two houses could reconsider the bill so re- 
turned, and by a two-thirds vote pass it, and it became a 
law as if the governor had signed it. The Senate was com- 
posed of a smaller number of members than was the House 
of Representatives. The senators represented districts into 
which the State was divided, each district consisting of sev- 
eral towns, or, as they are more commonly known outside of 
New England, counties. Senators were chosen in 1780 at 
county meetings by the male inhabitants of the State, 
of the age of twenty-one years or more, having real 
estate within the Commonwealth of the annual income 
of £3, or any estate of the value of £60. The dwelling- 
place or home of the elector determined his legal residence 
and place of voting. The senator himself was required to 
possess a land estate in tlie Commonwealth of the value of 
£300 at least, or to be possessed of personal estate to the 
value of £600, or of both, to the amount of the same sum. 
lie was also required to be an inhabitant of the State for 
a term of five years immediately preceding his election, and 
also to be an inhabitant of the district in which he was 
chosen. The mention of personal property implies that by 
IVSO there had been a great change in property-holding in 
America, and that opinions'concerning property had greatly 
changed. In 1619, in Virginia, it is doubtful if the personal 
]iroperty of the entire community amounted in value to 
£600. By 1780 the value of personal property in Massa- 
X'liusetts was almost as screat as the value of real estate. 



44 THE MEMBER OF THE HOUSE. 

The House of Representatives was composed of members 
distributed according to the population of the corporate 
towns. It was a larger body than the Senate. Each town 
had at least one representative. Massachusetts was the first 
colony to introduce the written ballot, about 1634, and 
members of the legislature were chosen by written votes. 
To be eligible to the House of Representatives a man was 
required to be for one year an inhabitant of the town in 
which he was a candidate, and to be owner in his own right 
of real estate of the value of £100, situated Avithin the town 
which he would be chosen to represent. Or he was to possess 
any ratable estate, such as personal property, to the value of 
£200. If after his election he lost his property so as to be- 
come disqualified for being a representative, he thereby 
ceased to represent the town. Tlie member of the House of 
Representatives was not required to possess so much property 
as was the member of the Senate, for the reason that he did 
not represent so much property. The district was represented 
as a whole by the senator; the town, by the member of the 
Jlouse. A person qualified to vote for senator was also 
qualified to vote for a member of the House or for governor. 
No person was eligible to the office of governor unless at 
the time of his election he had been an inhabitant of the 
Commonwealth for seven j^ears preceding, and at the same 
time owner of a freehold estate within the State of the value 
of £1,000; and unless he declareVl himself to be of the Chris- 
tian religion. The lieutenant-governor was required to be 
qualified like the governor. He was a member of the gov- 
ernor's council, and succeeded him as governor of the Com- 
monwealth in case the gubernatorial chair became vacant by 



THE COUNCIL. 45 

reason of the death of the governor, or his absence from the 
State, or his inability to perform the duties of his office. 
Nine councilors were annually chosen from among the per- 
sons returned for councilors and senators by the joint ballot 
of the two houses of the legislature. In case any of the nine 
persons so chosen declined a seat in the council the deficiency 
was made up by an election by the two houses from among 
the people at large. The number of senators left constituted 
the Senate, but a councilor was required to vacate his seat 
in the Senate, or the executive and the legislative duties 
would have been confused. The council, which still exists. 
in the Massachusetts and Maine system of government, in 
New Hampshire and Vermont, and till 1886 in Florida, was 
for the aid and advice of the governor. All judicial officers 
were appointed by the governor with the consent of the 
Senate, and held office during good behavior. To this 
tenure of office minor judicial officers of the rank of magis- 
trates, and below that rank, were an exception, holding their 
offices for a term of yeai's. The governor and the legislature, 
or either of them, could require the opinion of the justices 
of the Supreme Court upon important questions of law. The 
delegates to Congress were elected by the joint ballot of the 
two houses, to serve in Congress for one yeai*. Any of them 
could be recalled at any time within the year and others be 
chosen in the same manner in their stead. Whenever two 
thirds of the electors in the Commonwealth desired a revision 
of the constitution the legislature was required to cause an 
election of delegates to assemble in convention for that pur- 
pose. Under this provision the constitution of 1780 has 
been amended thirteen times. Provision was made for 



46 THE COMMOX PLAN. 

education by incorporating the university at Cambridge 
under the control of the president and fellows of Harvaid 
College, and by providing for public schools, grammar 
schools, and for institutions for the promotion of science, 
arts, commerce, trade, manufactures, and agriculture, and for 
the clicouragement of public and private charities, industry, 
frugality, honesty, and punctuality in business, "and all 
social affections and generous sentiments among the people." 

The legislature exercised its powers at' its discretion, and 
the govei'nor was given the pardoning power, to be exercised 
"by and Avith the advice and consent of the council." lie 
was commander-in-chief of the army and navy, and of all 
military forces of the State. He signed all commissions, ap- 
pointed all judges, and with the consent of the council could 
remove them ujoon the address so to do of both houses of the 
legislature. 

On this general plan the State governments in America in 
1776 were framed. For a few years in Georgia and in Penn- 
sylvania the legislature consisted of a single house, but the 
second constitutions of these States provided for two houses. 
Government was tlierefore organized, distributed, and admin- 
istered in the thirteen States on a plan which may be de- 
scribed as common. In the details of State constitutions 
there were many differences, differences due to situation, to 
prevailing manners and customs, to the industrial conditions 
Avhich distinguished the several States from each other. But 
in this brief story of the Constitution these details cannot be 
presented. In each State the Assembly or lower house of 
the legislature, was the central authority, for to that house 
had the people delegated that sovereign power, the power 



TWO GHEAT CHANGES. 47 

to levy taxes and to appropriate moneys. But we would 
greatly err were we to impute to these first State constitu- 
tions and governnients that meaning, form, and interpreta- 
tion which are given to State constitutions now in force. 
The ideas which reign in a modern State constitiH|tion are not 
so simple as those which stand forth in the constitutions of 
the eighteenth century. Two great changes distinguish that 
period and the j^resent — the industrial change and the polit- 
ical change. By the industrial change the whole face of tlie 
country presents a new appearance. Bridle-paths gave place 
to canals; canals gave place to railroads; railroads divide in^ 
importance with telegraph and telephone lines. Corpora- 
tions, not dreamed of in 1780, now are "bodies politic," as 
any one may see who will read the constitutions of the six 
new States. Discoveries and inventions and industries have 
wholly rewritten the State constitutions, and not only re- 
written them but have compelled new interpretations of 
phrases found in ancient charters but now employed with 
modern meanings. The industrial chnnges have compelled 
constitution-makers to provide for groups of interests which 
have come into American life since the days of the second 
war with England. A recent State constitution resembles a 
code of laws v/hen it is compared with the brief, simple, and 
comprehensive summary of fundamental civil principles 
which composed the constitution of a State a century ago. 
The second change is political, and aflfects the elector. It is, 
in brief, the abolition of propert}'^ qualifications and religious 
tests ; it is the liberation of the franchise. The restrictions 
on the franchise under the Massachusetts constitution of 
1780 are less onerous than the restrictions which pi-evailed 



4B PROPERTY QUALIFICATIONS. 

in some of the States. In New Jersey the elector was re- 
quired to possess £50; in Maryland, fifty acres of land; in 
Delaware, a freehold estate; in North Carolina, fifty acres 
of land ; in Georgia, $10, or to be of any mechanical trade; in 
New York, £20 in real estate would he vote for a member of 
Assembly, and £100 would he vote for a member of the State 
Senate; in South Carolina, fifty acres of land; in Connecticut, 
an estate in land of the yearly value of $7 ; in Rhode Island, 
real estate of the value of $134; in Virginia he must own land; 
in Pennsylvania, fifty acres; and in New Hampshire and Ver- 
mont he was required to pay a poll-tax. Taxes on property 
were levied in all the States. Nor were property qualifica- 
tions limited to the elector; the executive was required to 
possess real or personal estate of still greater value. In New 
Jersey he was required to be worth £10,000 ; in North Car- 
olina, £1,000; in South Carolina, £10,000; in Georgia, £250, 
or two hundred and fifty acres of land ; in New Hampshire, 
£500; in Maryland, £5,000, of which £1,000 must be in 
land; in Delaware he must be a land-owner, and custom 
fixed the qualification at not less than landed estate of the 
value of $1,000; in New York, £100 in real property; in 
Rhode Island, $134; in Massachusel^ts, $1,000 ; in Connect- 
icut, a property in land of the yearl}^ value of $7. But in 
Delaware, in New York, in Rhode Island, and in Connect- 
icut only men of large wealth were ever made candidates for 
governor, and it may be said, that in all the States it was 
chiefly from old, wealthy, and influential families that the ex- 
ecutive, the judges, and the members of the upper house in 
the legislature were chosen; to the lower house a poor man 
might hope to come, or at least he would not be debarred 



HFLIGIOUS TESTS. 49 

from coming by his poverty. Tliere were more poor men 
than rich men in America a century ago, as now; but the first 
State governments and their successors for many yeai'S were 
not the poor men's governments. 

The electors and the elected were also required to have 
defined religious opinions. Atheists, infidels, agnostics, and 
non-churchmen were disqualified from voting or from hold- 
ing ofiice. In New Hampshire, in Vermont, in Connecticut, 
in New Jersey, and in South Carolina electors and elected 
were obliged to subscribe to the Protestant religion. In 
Massachusetts and in Maryland they were required to be-^ 
lieve in tlie Christian religion, which meant membership in 
the Episcopal Church in Maryland, and in the Congrega- 
tional Church in Massachusetts, In Delaware they sub- 
scribed to belief in the Trinity and the inspiration of the 
Scrij^tures; in North Carolina, to the divine authority of the 
Bible and in the Protestant religion, whicli in that State sig- 
nified membership in the Episcopal Church. Pennsylvania, 
with Quaker simplicity, required belief in one God, in the 
inspiration of the Scriptures, and in the future reward of 
good and in the punishment of evil. 

New York, Rhode Island, Virginia, and Georgia made no 

formal requirements, but by force of custom in these States 

the Protestant faith was j^redominant, the Episcopal Church 

in Virginia and in Georgia, the Baptist Church in Rhode 

Island, and in New York the Congregational and the Epis- 

co^^al Churches. But in these last-named States no man was 

excluded from the franchise because he belonged to any 

other Christian denomination. 

Limited by the qualification of proj^ei'ty, of religious opin- 
4 



50 NUMBER OF ELECTORS. 

ion, of sex and of age, tlie number of electors in this country in 
1776 was far less in proportion to the whole number of inhab- 
itants than is the number at the present time. Slaves could not 
vote. Perhaps in some States, as occasionally in Massachu- 
setts or in New York, a free black might have been seen at 
the polls. Estimating the entire population, free and slave, 
in 1776 at two and one half millions, which is a large es- 
timate, by the ratio of the free franchise to which we are 
accustomed, one elector to five of the population, there would 
have been above four hundred and fifty thousand voters in 
the thirteen States. It is difficult to ascertain the exact 
number at that time, but careful computations indicate that 
the number was less than one hundred and twenty-five thou- 
sand souls. It is perhaps not incorrect to estimate the num- 
ber at one hundred thousand. In twenty-six States to-day, 
just twice the number of the original Union, the right of 
sufi^rage is exercised, at times and for certain j^urposes, by 
women. Not a woman voted a century ago.* It may sur- 
prise lis to discover that the franchise was so limited in this 
country at a time when the fathei's and the sous were 
struggling for liberty. But to this limitation no strong op- 
position developed until after the national Constitution had 
Keen for a quarter of a century the supreme law of the land. 
Ignorance and poverty marked as their own the majority of 
the inhabitants of the States when independence was de- 
clared. Not all States made provision, as did Massachusetts, 
for the education of the masses at public expense. There 

* Wonien voted in New Jersey imclor tlie constitution of ITTG by later 
legislation. The right to vote was given to women having a certain amount 
of real estate in their own right. 



EDUCATION. gi 

were no public schools. And we should not for a moment 
forget that the condition of the masses in Eiiglan,!, in France, 
in German^r, in Italy, was at that time far less comfortable 
than in the United States. Democracy has turned the world 
upside down since the American States made their first con- 
stitutions of government. Education is no longer a State 
secret, a wonderfnl talisman in the Latin tongue. When 
Massachusetts first framed a republican form of government 
the professors at Harvard were lecturing on Aristotle in 
Latin to their classes. There were perhaps not above five great 
schools in America— Harvard, Yale, Pennsylvania, Princeton,^ 
and King's College, now Columbia. The course of study in 
any of them was at that time considered far in advance of 
the age, but it would not now satisfy the requirement for a 
certificate from a respectable fitting school. Few young 
men ever went to college. There was usually but one use 
for a college man, to make a clergyman out of him ; an ap- 
prentice, a mechanic, a merchant, a lawyer, even the town's 
doctor, had, as was commonly thought, little use for a col- 
lege. The mothei-s were the country's teachers, and their 
busy and burdened lives could find scant time for teaching 
more than the alphabet and a tolerable pronunciation of the 
language of Scripture. Except along the fringe of coast- 
line, newspapers scarcely were to be seen in the country, and 
not a magazine, as we know the magazine, was in existence. 
The terrible struggle for daily bread consumed the energies 
of the masses, and in their rude lives literary amusements, 
now too common to attract attention, were wholly unknown. 
In the large towns were clul)S composed of a few enter- 
prising young men, at which were discussed, largely with- 



52 AN AGE OF INQUIRY. — 

out the aid of books, and wholly without the aid of libra- 
ries, the fundamental problems in government. But no 
company of young men could now be brought together to 
discuss in our day the questions Avliich interested them: 
Are human rights natural or acquired ? Should government 
be organized for the good of the people ? and other ques- 
tions involving principles which we accept as forever settled. 
These political clubs were unknown to the rural districts, 
except here and there, where, as in some j)arts of Massa- 
chusetts and Virginia, a solitary genius, like James Otis or 
Patrick Henry, helpless in the confusion of streaming 
thoughts, sought relief by conversations and arguments with 
farmers and planters who had a moment's leisure. The age 
was an inquiring, not a critical, age, and it builded on its 
isolated experience quite unconscious of the style of its polit- 
ical architecture. It is a century after that marks the age 
of criticism, when analysis outruns principles and imputes 
to a body of earnest yeomen, as they usually described them- 
selves in their deeds and wills, a knowledge of political sci- 
ence which the world does not yet fully possess. Our an- 
cestors were active, honest, fearless, persevering, pi'actical 
men; nothing more, for thei*e Avas nothing more. But every 
American in 177G was not a Franklin or a Jefferson, any 
more than in 1860 was every American a Field or a Lin- 
coln. No brief description of the American of 1776 excels 
that given of him by Emerson: "the embattled farmer." 

The constitutions of the States, while alike in having a 
bill of rights, an executive department, a legislative de- 
partment, and a judiciary, differed widely among themselves 
in the practical administration of affairs. In the Southern 



TITLES 53 

States the offices were almost exclusively in the control of 
the oldest families, possessing ancient names and plantations 
of thousands of acres. In the central States the offices were 
held by a similar class, constituting the aristocracy of the 
land. In New England, more than in any other part of the 
country, thei"e was a chance for men like Roger Sherman 
who began life a shoe-maker, acquired at the bench a pro- 
found knowledge of practical affiiirs, studied law, and rose to 
most honoi'able fame in civil life. 

Among these various constitutions was a number of titles 
designating the same office or department of government. 
In New Hamjjshire, in Pennsylvania, in Delaware, and 
in South Carolina the executive was called President, in 
the remaininsf States he was stvled Governoi*. The lesj- 
islature and its two houses were known by different names, 
as they are to this day known by different names. The 
terra legislature itself meant then what it means now, 
the law-making bodj'- in the State. In New England, in 
New York, in Maryland, in Virginia, and in the Carolinas 
the up23er house was called the Senate; in Vermont, in New 
Jersey, and in Delaware it was known by its colonial name, 
the Council. The title House of Rej^resentatives described 
the more popular branch in New England, but it was known 
as the Assembly in New York, in New Jersey, in Penn- 
sylvania, in South Carolina, in Georgia, and in Delaware. 
Virginia and Maryland called the lower house the House of 
Delegates, and North Carolina used the name the House of 
Commons. The State governments were uniform in pre- 
scribing a longer term to members of the upper than to 
members of the lower house, and also in making a distinc- 



54 THE COURTS. 

tion between tlieir functions. In Virginia and in Massa- 
cliusetts tlie Senate represented large districts or groups of 
interests in the State, the lower house being more numerous 
in membership, which was based uj^on j^opulation, each of 
the smallest constituencies in the State having its representa- 
tive. The upper house of the State legislatures was, and in 
general still remains, similar to the national Senate, and 
the lower house to the national House of Representatives. 
But it need scarcely be remarked, by way of caution, that 
at the time when the first State constitutions were made the 
national Constitution was yet nearly twenty years in the 
future. 

The lower house had the exclusive right to levy taxes and 
to appropriate money, but the upper house had the longer 
term of service and it was consulted by the governor in his 
appointments. It would be difficult, perhai^s impossible, to 
bring into one brief statement any just comparison of the 
various State judicial systems. No part of the story of the 
Constitution is more difficult. The intricacies of legal prac- 
tice, the traditions from England, the neAV customs which 
sprang up in colonial courts, the isolation of the States in 
legal matters so that the rules of court in one part of the 
country, and often in one part of a State, were wholly differ- 
ent from the rules in another part of the country or of the 
same State forbade a uniform judicial system. In judicial 
titles, in the jurisdictions of courts, in the tenure of office, in 
the relation between courts of different jurisdiction in the 
same State will be found differences altogether too confus- 
ing to permit a full examination here. A glance at the 
many judicial systems to be found at the present time in our 



THE CIRCUIT. 55 

four and forty States, after a century of union and a con- 
stant tendency to uniformity in State practice, suggests what 
curious differences would be found in the judicial systems of 
a centuiy ago or more, when there was no union and no 
tendency toward uniformity in practice, but a studied effort 
for diversity. Then judges above the rank of magistrates 
were usually appointed by the executive of the State to con- 
tinue in office during good behavior. Now the judges in 
the higher courts are elected by the people for short terms, 
except in Massachusetts and in Rhode Island, where they 
are appointed for life; and in Delaware and Louisiana, in 
Mississippi and in New Jersey, where they are appointed 
for a term of years. Then the judicial acts, proceedings, 
and decisions in one State had no force or value, of them- 
selves, in any other State, so that there was no practicable 
relief in interstate cases. Lawyers were seldom called out 
of their own State to tiy a case, and both judges and law- 
yers went on circuit, from court town to court town, till the 
cases were all tried and the dockets cleared. Curiously 
enough, the only remnant of the old State court system is 
now found in the Supreme Court of the United States, whose 
members at certain seasons of the year hold circuit court 
in the nine districts into which the country is divided. A 
century ago probably every judge in the land held circuit 
court, and the system in the States was not abandoned until 
about the time of the civil war.* Judicial matters were con- 
fused in the early State constitutions, and the absence of a 
central overruling court of last resort caused many dis- 
tressing evils. 

* New Jersey still has the nisi prius system of circuit courts. 



56 THE ASSEMBLY EEMATNS. 

In the administration of government there was a similarity 
among States of the same section of country. New York 
was greatly influenced by the system of administration com- 
mon to New England. Pennsylvania and New Jersey had 
little in common with New England, but much in common 
with each other. Maryland and Delaware formed a group. 
Virginia, the largest and most populous of the States, dif- 
fered widely from the northern type, and had a marked in- 
fluence on the system of administration found in each of the 
States farther south. These similarities and differences 
pointed out by writers now were not so clearly seen by our 
ancestors a century ago. It is correct to describe the State 
constitutions of the eighteenth century as alike in general 
plan but widely'" differing in details. Each State claimed 
to be sovereign and independent. But in the struggle 
between king and people for sovereignty the people had 
won, not, as it was at one time thought, by the triumph 
of State sovereignty, but by the triumph of national sov- 
ereignty. 

Governors appointed by the king gave place to governors 
elected by the people, and because of their old jealousy to- 
ward governors the first executives in the States had far less 
power than have the governors of States in our day. We 
limit the powers of the legislature and increase the powers 
of the governor; they gave unlimited powers to the legisla- 
ture and limited the powers of the executive. 

The difference between the constitution-makers of our day 
and the constitution-makers of a century ago marks one of 
the most significant changes in the civil and political history 
of the United States. The old governor's council gave place 



THE POWER OF CUSTOM. §7 

to the upper house in the legislature chosen by the electors. 
One part of the colonial government most essential and 
central in authoiity was continued — the Assembly, that still 
possessed the right to levy taxes and to appro23riate money. 
This is the only part of our State governments that comes 
down to us unchanged for two centuries. The new State 
judiciary, like the old, was appointed by the executive, Avith 
the consent of the legislature, usually, of the upper house, 
just as now, when a vacancy occurs in the United States 
courts, the President appoints a man to the office, with the 
consent of the Senate of the United States. ^ 

Thus we discover that when the second Continental Con- 
gress recommended to the colonies to transform themselves 
into States and " to take up civil government," the change 
was an easy one, because the machinery for the change had 
long been in motion, and the people merely put into written 
constitutions the system of government to Mdiich they had long 
been accustomed, or to which events had been for many years 
leading them. When the hour came the new actors that came 
upon the stage were the old familiar actors who spoke familiar 
lines, perhaps here and there with new meaning that only 
made their readings more interesting. The colonial Assem- 
bly triumphed over the British Parliament, as the British 
Parliament, a century earlier, had triumphed over a British 
king. The firm insistance by the people expressed in the 
thought and action of their leaders in successive declarations 
of rights, " That it is inseparably essential to the freedom 
of a people . . . that no taxes be imposed on them but with 
their own consent, given personally or by their representa- 
tives," and that no taxes could " be constitutionally imposed 



58 THE TAX STRUGGLE CONTINUES. 

on them but by their respective legislatures," brought the 
whole people at last, of necessity, into a war with the home 
government, and eventually into national independence. 
But the supreme test of the triumph had not yet been made. 
It came after the war had closed, after peace had been 
declared, after enthusiasm had fallen asleep and the mighty 
responsibilities of nationality and power were before the 
people face to face. Then it was, during the dreary and 
anxious years that followed the peace, that the people real- 
ized the meaning of the sacrifices, of the labors, of the 
hitherto unknown forces of independence. Then it was that 
the national idea grew apace and the State idea betook itself 
into juster proportions. Then it was that grinding neces- 
sity compelled the people of the United States to form a 
more perfect union. 

We have now rapidly traced the growth of constitutional 
government from the time of the first Virginia charter 
given by James I. to the London and Plymouth Companies 
onward, past the meeting of the first American General As- 
sembly in 1619, past the time of the declarations of rights, 
past the time of the Continental Congress to the period 
when the colonics with one accord and almost at the same 
moment transformed themselves into States. Omitting 
many incidents of the story, we have considered only one 
idea, very briefly — the idea of the sovereign taxing power. 
We discovered that poAvor in the Assembly in Virginia in 
1619. We discovered that j^ower in the lower house of each 
colonial legislature, and when the first State constitutions 
are formed we detect no break or interruption in the main 
current of civil affairs, for the lower house still possesses the 



THE EVILS OF THE DA Y. 59 

taxing power. About that power the battle raged and about 
that power it will continue to rage. 

In presenting so briefly the story of constitutional gov- 
ernment in America from 1619 to 1776 we have imparted 
to the theme an appearance of harmony and unity among 
men and between the States which did not exist. Not that 
we have misrepresented the record so sternly made in tliose 
unquiet times. Difliculties, jealousies, recriminations, con- 
spiracies, trespassing legislation, conflicting decisions of 
courts, commercial avarice, and bitter rivalries, dishonorable 
actions, and gravely alarming conditions in all i^ublic affai^^ 
have scarcely been hinted at. But they all existed, and 
many more. We have told the story of the Constitution, 
which has its first chapter in the story of the individual 
States. While these States are framing plans of govern- 
ment there are national interests imperiled, interests of far 
greater magnitude. 



60 THE UPRISING OF THE PEOPLE. 



CHAPTER II. 

HOW THE STATES FORMED A CONFEDERATIOK WHICH FELL 
TO PIECES BECAUSE IT HAD NO TAXING POWER. 

1776-1789. 

The Revolution of 1776 was the uprising of the j)eople of 
all the colonies against the government of the British Em- 
pire. Before the war the colonies were on a plane of civil 
equality, an integral part of the empire. The Revolution 
knew no jDrecedence among the colonies, and the peojjle of 
no colony can be said to have priority^jof right of leadershij^ 
in the war. The people acted as a unit. Separate and in- 
dependent State revolt f i-om British authority was unknown. 
Colonial representation in the general assemblies was famil- 
iar to all the people, and when the time for concerted action 
came the people followed the familiar course of choosing 
representatives to a Continental Congress as they had long 
been accustomed to choose representatives to their local assem- 
blies. The assemblies had considered only the wants of the 
individual colonies which they rej^resented; the Congress 
took into consideration the general welfare of America. To 
the first Continental Congress which assembled in Philadel- 
phia on the 5tli of September, 1774, delegates came from 
the different colonies, chosen in some by the members of 
Assembly, in others by a convention specially called by the 
electors in the colony. The delegates so chosen describe 



TUK DELEGATES TELL TUE NEWS. Gl 

tlieraselves in their acts as " the Delegates appointed by tlie 
Good People of the Colonies; " making no reference to the 
several States as independent or sovereign. This Congress 
Avas a convention of the whole people, and therefore national 
in character; but considered as a government it was tempo- 
rary, revolutionary, experimental, and imperfect in organi- 
zation. 

The acts of this Congress were of national importance. 
It forbade, by its non-importation act, the imj^ortation of 
merchandise from Great Britain or the exportation of mei*- 
chandise to Great Britain; it issued a declaration of rights an(l 
framed an address to the king and to the people of England. 
Returning to tlie body of the people, its delegates con- 
tinued the national movement by explaining to those who 
had elected them the situation of affairs and by making 
common information of the opinions of the j)eople in all 
parts of America. The essential function of this Congress 
was to disseminate the political ojjinions of the country. 
Delearates from New EnQ;land met delesrates from Gcorcfia 
and the Carolinas, and for the first time in American history 
the thoughts of any of the people were made known to all 
the people of America. Popular ap^jroval of the acts of this 
Congress was shown by the election of delegates to attend a 
second Congress, which met in Philadelj^hia on the 10th of 
May, 1775. The majority of the delegates to this second 
Congress were chosen in conventions called for the purpose; 
the minority were chosen by the members of the assemblies. 
This m.anner of choosing delegates deserves more than pass- 
ing notice. The convention is peculiar to American political 
history. Here it originated and here it remains, an instru- 



62 TRAITORS OR PATRIOTS. 

ment in popular goveniiiicnt used to ascertain the last for- 
mally exj^ressed will of the j)eople. The convention is repre- 
sentation applied to politics, as the legislature is representa- 
tion aj)plied to civil affairs. In our day the convention is the 
recognized means for nominating party candidates, for ascer- 
taining the bearing of party ideas, and for uniting all the 
forces of the party in one purpose at one time. And at 
critical times in State history a convention is assembled to 
frame a new constitution of government, or to frame amend- 
ments to the existing constitution. 

The acts of the second Congress were of wider application, 
being national in character, than were the acts of the Con- 
gress of the previous year. The j)eople by their conventions 
had approved the course of the first Congress and had given 
themselves over to the Revolutionary cause. Resting on the 
popular will the second Congress assumed control of affairs 
by a series of acts which condemned their authors as con- 
spirators and traitors or exalted them as patriots. They 
proceeded to regulate commerce; to provide funds for a 
national government; to create executive departments, as of 
war, of navy, and of the post-office; and, to crown all their 
acts, they issued the Declaration of Independence. The 
validity of all these acts rested thenceforth on the events 
of the war. If the j^eople would fight for the princijjles 
of the Declaration of Independence, and if the American 
armies triumphed, then must Great Britain and other nations 
recognize the independence of the United States. The 
standing armies of the nations of the world to-day demon- 
strate what confidence exists between nations in the notion 
" that the mission of man is peace." A century Las not 



WAR— PEA CE— COMPR OMISE. 63 

changed the essential principles of Jiationality Avhich were so 
closely examined at the time of the American and the French 
Revolutions; that the condition of nationality is the condi- 
tion of armed protection; for no nation will keep its treaties 
nnless it is compelled to, and no nation will compel the keej)- 
ing of a treaty which is not to its own interest. Arbitration 
means compromise, and its methods are as old as disputes 
among men; but arbitration between nations is improbable, 
and scarcely possible, unless they are of equal power. It 
was impossible to arbitrate the diiFerence between the colo- 
nies and the home government in 1776. No government cai% 
arbiti'ate Avith rebels, and the Americans in 1776 were rebels. 
If successful, they became revolutionists and founders of a 
State, makers of a nation. Arbitration was possible after 
the definitive treaty of i^eace, not befoi'e. The dispute about 
the taxing power had gone beyond the stage of declarations 
of rights, of petitions, of expostulations; the differences be- 
tween the Americans and the English government touched 
on the vital principles of that government, the right of that 
government to tax its citizens. The right was not disputed 
as an abstract right in government; the dispute suddenly be- 
came of uncompromising difficulty — which government shall 
tax the Americans, the English government, or a government 
instituted by the Americans themselves ? War, and Avar only, 
could decide this question. 

The delegates to this second Congress were not chosen 
directly by the people; they were chosen as we now choose 
the President of the United States, by an indirect vote of 
the electors. The electors chose the members of the conven- 
tions or the members of the assemblies, and the conventions 



64 MEN OF FAME. 

or the assemblies chose the delegates to Congress, It will 
never again be possible in America to enter upon the foun- 
dation of a government in so indirect a manner as was fol- 
lowed in 1776. It was then thought that such a system 
resulted in the choice of the best men, the idea jirevalent at 
the time being that the masses of the people were incapable 
of deciding for themselves what was best for their own inter- 
ests, and, therefore, an intermediate body of men, acting as a 
discriminating committee, would choose the best men. There 
seems to have been no organized opposition to the appli- 
cation of this idea in American civil affairs until nearly forty 
years after the national Constitution Avas made, and nearly 
fifty years after the Declaration of Independence was issued. 

In the application of this indirect method of obtaining 
the will of the j)eople it followed that the control of 
public affairs fell into the hands of a few men best 
known to the community, to the State, or to the nation. 
There were no "dark horses" in American politics under 
the administration of this system. There were few obscure 
men in the early Congresses. There were delegates more 
widely known than others, as Franklin and Washington and 
John Hancock were more widely known than Willing or 
I-Iall or Bland; but not one member of the Congress was 
without reputation in his own community, nor wholly un- 
known throughout his own State. 

The process of selection incident to the indirect choice of 
delegates doubtless resulted in a more able gathering of 
men than could have been made by the modern system of 
party organization and party choice irrespective of the man 
whom the machinery of party politics may take up. The 



THE HEMO OR A TI C RE VOL UTIOK 65 

essential difference between the politics of that day and of 
this is the difference between individuals and party organiza- 
tion; then individuals got along Avithout parties; now par- 
ties get along without individuals; then the man was chosen 
becatise he Avas known as pre-eminent in civil affairs, or as 
capable of pre-eminence; now the man is chosen becausG lie 
stands for the accepted doctrine of an organized party, is 
the concrete expression of that party, and loses his identity 
in that party. It Avas a democratic revolution in 1825 Hvhich 
overthrew the indirect method of electing public officers in 
this country; it Avas a colonial and English, indeed, a federal^ 
notion, that the people as a mass were incapable of govern- 
ment, and therefore the representatives of the people should 
be indirectly chosen. But the results of the democratic 
revolution of 1820-30 have not been democratic; it has re- 
sulted in the creation of a party power Avhich quite as seldom 
rei^resents the Avishes of the individual electors as did the 
indirect choice of public officials a century or less ago. The 
convention, which was devised by Americans as a means to 
an end, has become the end itself, and scarcely an office of 
importance in State or nation can now be obtained without 
the j^revious Avinning of a convention. So complete is the 
change that no elector to-day thinks of voting against the 
candidate for the presidency Avho has received the nomina- 
tion in a convention of the party to Avhich- the elector be- 
longs, even if the nomination does not fully please the elector. 
A slight examination of present politics will illustrate how 
little, after all, is the diffei-ence between the manner of 
choosing delegates to Congress in 177G and at the present 
time. The ajiplication of the representative system to poll- 



66 A Pew men rule. 

tics, as well as to government, must take from the people 
the direct control of public affairs. AVhatever system of 
electing officials in a representative government might be 
followed, that system itself would ultimately illustrate the 
representative idea. The most democratic government in 
ti.e world could not exist without the machinery of this rep- 
resentative system. The control of government must of 
necessity fall into the hands of a few men. Let no one imag- 
ine that "bossism" in politics is a modern American disease. 
Bossisni is the name of a system of representative govci-n- 
ment abused. In a republic like our own, in which the peo- 
ple care more for material welfare than for forms of govern- 
ment or for politics, bossism as an evil is yet in the infancy 
of its history. The representative idea in government is 
good if well applied, but extremely dangerous when ill-ap- 
plied. The struggle for wealth dulls the caution of the citi- 
zen so that he delegates his political power carelessly, or 
even with a feeling of relief. Caring little for government or 
politics himself, he cannot expect that his deputy and repre- 
sentative will care more. Bossism becomes a fact when the 
electors are indifferent to whom they delegate their political 
powers. The abuse of the representative system springs 
naturally from indifference and neglect in the electors of 
their political rights and duties, t- 

The delegates to the first Congress probably represented the 
people of their day as closely as do our representatives in Con- 
gress represent the people at the present time. If the whole 
list of delegates from 17'74 to 1789 be scanned there will be 
found on the roll the name of almost every distinguislied man 
in America at that time. Not all members of the Congress 



THE GIANTS AND THE PYGMIES. 67 

of the Confederation nor of the Congress before the Confed- 
eration were " giants in those days." It has become com- 
mon to si^eak of these early Congresses as wholly composed 
of such men as Jefferson or John Adams or John Jay. 
This is a mistake. There were also pygmies among the 
famous body of giants ; and, as at other times in our national 
liistory, in the history of these early Congi-esses there has 
been an exaltation of the giants and an utter oblivion of the 
pygmies. Of the public men of the Revolutionary period 
from 1765 to 1789, a period of a quarter of a century, the 
number perhaps reaches three hundred, if men eminent botP 
in State and in national politics be included; but of that three 
hundred or less not above fifty can be named as men who 
may be classed with the leaders of the time in Europe or 
with the leaders of subsequent critical periods in our own 
history; and of these fifty men we have named the greatest 
when we name Franklin and Washington, Jefferson and 
Hamilton, Madison and Marshall, Morris and Adams, Rut- 
ledge and Jay. In the thirteen State legislatures was a 
body of men in training; in Congress the majority of delegates 
were men who may be described in the language of poli- 
tics as safe men. But the great leaders soon left both State 
legislature and Congress and became actively engaged with 
Washington in military affairs or with Franklin in the dip- 
lomatic service. The daily civil tasks of the Revolution were 
performed, as they are always performed in government, by 
industrious men quite unknown to fame. As the character 
of the American Revolution, by comparison Avith the various 
political history of the country since that time, is mure per- 
fectly understood, the work of the American patriots is seen 



68 THEORY VERSUS PRACTICE. 

in no diminution of luster. They did what they did in con- 
formity with the course of their own experience as colonists, 
and perhaps with some illumination from such political writers 
as Montesquieu and Rousseau, as John Locke and John Mil- 
ton. They laid down the principles of government with a 
precision almost axiomatic; this was their work in the M'orld. 
But they failed in the administration of government as 
remarkably as they succeeded in fixing its political prin- 
cijjles. Our age is the age of administration, not of the 
foundation of governments. Nor have our legislators yet 
succeeded in determining the axioms of governmental admin- 
istration. The Amoi'ican Revolution j^robably settled for- 
ever in this country the principles on which government is 
founded, but it settled nothing in the administration of gov- 
ernment. We shall soon discover, in our brief examination 
of the conduct of public affairs by the Continental Congress 
and by the Congress of the Confederation, that never in the 
world's history, in a government of intelligent men, was 
there a Avorse administration of public affairs than in America 
from 1776 to 1789. Administration, as "\ve now understand 
that term in government, was to the American legislators and 
their colleagues in office a word of unknown meaning. There 
Avere men, few indeed in number, who understood the mean- 
ing of the term, but they were men who, like Hamilton, 
were admired rather than followed. The whole effort of 
administration in the Confederation broke down at last ; nor 
was it till Hamilton, a master of administration, liad become 
secretary of the treasury under the national Constitution 
that the transition was made from the Revolutionary j^eriod 
of the formation and framing of governmental principles to 



FRANCE, ENGLAND, AND AMERICA. 6y 

the national period of aj)plication of those principles to the 
welfare of the nation. 

I have digressed from the broad highway of the story of 
the Constitution in oi'der to present some characteristics of 
the Revolutionary period not frequently discussed. It is no 
wrong to the memory of our fathers that we discover in their 
woi'k an incompleteness that must be necessary to it from its 
nature. They could, and they did, found a government, but 
they could not, as they did not, succeed in administering it. 
Nor was their failure conspicuous or solitary in that age of the 
world. Neither England nor France succeeded so well eithe^ 
in the founding of governments or in the applications of polit- 
ical principles as did the members of the American Congresses 
from 1774 to 1789. The efforts of England in administration 
is told by one of her most eminent public servants and his- 
torians, Sir Thomas Erskine May, and the struggles of France, 
both in founding governments and in attempting to admin- 
ister them, may be traced in the confessional memoirs of 
Talleyrand, who participated, as did no other Frenchman, in 
the governments so founded and so administered. The 
period of the American Revolution was the age of constitu- 
tion-making, of the founding of States, of the determination 
in ))ractice of the principles of government. The course of 
events on this continent was only one part of that large 
event going on throughout the western world, the establish- 
ment of representative government. But the chief charac- 
teristic of the whole age is the determination of the principles 
of government and not the detei'mination of the best admin- 
istration of government. The administration of government 
is the chief problem of the age iu which we live. 



70 THE NATIONAL IDEA. 

The second Congress, like its successors to this day, was a 
national body of delegates from the people. The Declaration 
of Independence was "of these united colonies." The States 
were free and independent in their unity. No individual 
colony claimed a separate act of independence from Great 
Britain, The instrument of formal separation uses the 
expression, " the good people of these colonies," as descrip- 
tive of one sovereign, political body or society — the people 
of the United States. We have seen in the story of the 
State constitutions that three States, South Carolina, New 
Jersey, and New Hampshire, adopted their first constitutions 
before the Declaration of Independence was issued. The 
first Congress, on the 3d of November, 1775, had recom- 
mended that the colonies, pending the dispute with Parlia- 
ment, "should organize such governments" as would "best 
promote the happiness of the people ; " but the governments 
so formed were, as in the case of New Jersey, provisional in 
their character. New Jersey, in convention, or congress, as 
the Assembly was called, on the 3d of July, 1776, issued a 
constitution of government with this clause: "Provided 
always and it is the true intent of this Congress, that if a 
reconciliation between Great Britain and these colonies should 
take place, and the latter be taken again under the protection 
and government of the crown of Great Britain, this charter" 
(that is, the New Jersey constitution of 1776-1844) "shall 
be null and void, otherwise to remain firm and inviolable." 
From the language of this clause it is plain that New Jersey 
did not claim separate independence, but that the action of 
the State depended finally upon the " reconciliation between 
Great Britain and these colonies." The Declaration of Indc- 



THE NA TIONA L IDEA. 77 

pendence itself is a corapend and resiane of various earlier 
declarations and resolutions made either by the first Congress 
or by conventions and assemblies in various colonies. It 
presents in a simple, brief, and orderly manner the common 
opinion of the people, and its provisions, now somewhat 
obscure, were evidently illustrated and explained by inci- 
dents familiar to the public mind. Perhaps no state paper 
in American history is more famous, and no state paper of 
the Revolutionary period is more obscure. 

Virginia, on the 29th of June, of the year of the Declara- 
tion, had issued a declaration affirming that "the government 
of this country, as formerly exercised by the crown of Great 
Britain, is totally dissolved." The phrase "government of 
this country " referred to the colonics as a unit, and not to the 
State of Virginia alone. It is just to conclude, tlierefore, 
that the separation from Great Britain was not a separation 
by individual States, but the separation of the united colonies. 
The people as a political unit, as a nation, formed the sepa- 
rating mass, elected delegates to a national Congress, and in- 
augurated a national government. The s-truggle between peo- 
ple and king and people and Parliament, which we have told 
in the story of the States, won a vaster triumph than that of 
mere popular representation in a colonial assembly. The vic- 
tory Avas nearly won in the several colonial legislatures, but 
the victory was incomplete until the national government wiis 
established. At the time when the Declaration of Inde- 
pendence was issued neither the people nor the leaders saw 
clearly the ultimate consequences of their act, and but few of 
the greatest minds saw the consequences near at hand. Tliere 
existed a strong anti-revolutionary feeling in the colonies, a 



72 FRANKLIN. 

feeling which the British government failed to nourish into 
a political party, but which, unorganized, was still strong 
enough, had a full vote been polled on the question of separa- 
tion from Great Britain, to have held the balance of power. 
But the friends of king and Parliament were at the negative 
pole of events; the friends of independence were radical in 
their ideas and aggressive in their acts. 

An examination of the ages of the men of the Revolution 
discloses, what all revolutions disclose, that few old men 
took an initiative and active part in the movement. Franklin 
will at once come to mind as an exception, but Franklin 
was a peculiar jnan, and not a type of the men of his gen- 
eration. At the time when the Declaration of Independ- 
ence was issued Franklin was a little past seventy years 
of age, at a time of life when the few who reach it are 
only too willing to retire irom active pursuits, when the 
body is feeble and the mind is in sympathy with the 
body. But Franklin at seventy was still a young man. He 
had never been an old man, for throughout his life he had 
assiduously cultivated the society of the choicest youth whom 
he could gather about him by the pleasing attractions of a 
winning manner, an inexhaustible information, and an incom- 
parable wit. He represented every generation that had come 
upon the stage during his time. He lived in the present, 
and, unlike other men of his years, he looked into the future. 
He was fond of new things, yet never a radical; he was So- 
cratic in his wisdom, yet never a pedant. He had differed 
from the Society of Friends in opinion, he had opposed them 
in the management of affairs in Pennsylvania; he had argued 
against the treatment of the colonies by Parliament at the bar 



FRANKLIX 7-3 

of the House of Commons, and with members of Parliament 
at their iiomes; yet lie had intimate and devoted friends among 
the Quakers and among the leaders of both houses of Parlia- 
ment. He had long been known to the world as a philoso- 
|»her, yet his whole philosophy is the present-day wisdom of 
common sense which every body delights in and few possess. 
He assiduously applied himself to the solution of the imme- 
diate questions of the day and to the exposition and satisfac- 
tion of the immediate wants of man. His keen, practical 
mind detected the signs of the times, and, identifying him- 
self with youngei- men, he easily directed them by his counsel, 
while they imagined that they were using his name in fur- 
thering their political schemes or their individual ambition. 
When the hour of the Revolution struck, Franklin was alert, 
calm, confident, discerning, counseling, surrounded by the 
choicest youth of the city of his adoption, and by the ardent 
spirits of all the colonies, who doubtless would have acted 
without him, but who harmoniously acted with him. His 
whole career as a leader in the Revolution was in perfect 
keeping Avith his course of life as a citizen of Philadelphia 
for three and fifty years before the Revolution came. Of all 
the men who bore a part in the great events of that age in 
America, Franklin, more than any other man, was the em- 
bodiment of the highest type of colonial America. He stood 
for colonial experience, and colonial experience was the find- 
ing of the principles of representative government. A cent- 
ury of stiaiggle for popular rights had preceded the calling of 
the second Congress. As the struggle passed from a colonial 
into a national arena one by one those who had enlisted in the 
popular cause fell away. It was reserved for FrankliUj the 



74 THE LEADERS YOUNG MEN. 

son of an obscure candle-maker of Boston, to come at the last, 
when the forensic battle had become a battle at arms, to aid 
the youth and the middle-aged patriots of 177G in the organ- 
ization of a government on the liberal principles for which 
the colonists had so long contended. And when peace came 
Franklin, still spared for greater service to his country, 
gave the full strength of a life culminating in benefits to his 
countrymen to the establishment of the more perfect Union 
and the making of the Constitution of the United States. In 
Franklin met the old and the new: the experience and the as- 
pirations of colonial days and the j^ossibilities of the new 
nation, founded on the firm basis of representative govern- 
ment. 

Of Franklin's colleagues in the second Congress Wash- 
ington was at the age of forty-four, Jefferson ten years 
younger; John Adams was forty-one, Robert Moi-ris a year 
his senior; Roger Sherman fifty-five. But among his con- 
temporaries were men and youths who were destined to lofty 
services to their country both in military and in civil life. 
Wlien Franklin and Sherman and Adams and Jefferson af- 
fixed their names to the Declaration of Independence, Madi- 
son was but twenty-six, Rufus King twenty-one, James 
Wilson thirty-four, and Alexander Hamilton scarcely nine- 
teen. These younger men, and others perhaps less famed, 
were soon to be associated with Franklin and Washington 
and Sherman in Congress, and, later, in that unrival-ed gather- 
ing of statesmen who gave to the world the Constitution of 
the United States. Much of the vigor of thought and of 
language in the political literature of the Revolutionary period 
is explicable when are considered the significance of the 



THE PEOPLE NOT ENTHUSIASTIC. 75 

principles involved and the age and temperament, the ed- 
ucation and surroundings of the orators, the writers, the 
pamphleteers, and the chroniclers of that day. The glory of 
nationality appealed to such different minds as that of Adams, 
of Sherman, and of Jefferson. To Franklin independence 
and nationality came as the fruit of a tree long since planted 
in America, the ripening of events steadily moving forward 
to this consummation. To the ardent mind of Hamilton 
nationality was the new-found opportunity of civilization and 
the fair blossoming of ideals more pleasing than even philoso- 
phers had dimly seen in their visions of a perfect government 
To the people at large nationality was only a name for a de- 
flection of the taxes for local purposes as their chosen repre- 
sentatives might choose. Less wrought up than their leaders, 
the people followed Congress, but as times darkened into days 
of defeat, of annihilation of credit, and into days of civil confu- 
sion, the people followed Congress at an ever-increasing 
distance. If the people suffered, they blamed Congress. If 
victory was won, they forgot Congress and remembered only 
the soldiery. 

The States, having quickly reorganized their civil af- 
fairs on the colonial model, made clearer distinctions be- 
tween the divisions of government than had before pre- 
vailed. Each State had its own precedent, but the threefuld 
division of the powers of government was followed in them 
all. With this precedent before them it is, at first thought, 
strange that Congress erred so seriously when it organized 
the basis of the Confederation, But the Confederation was 
an experiment. On the 11th of June, 1776, Congress ap- 
pointed two committees, one to frame a Declaration of Inde- 



76 THE DECLARATION AND SLAVERY. 

pendence, the other to draw up a plan for a general govern- 
ment. The report of the first committee was favorably, al- 
most unanimously, received, and after slight modifications of 
Jefferson's draft, which was the report of the committee, it 
was adopted and published on the 4th of July following as 
the unanimous declaration of the delegates. On the 8th of 
the month the committee on the Articles of Confederation 
brought in its report, but nearly five years passed before the 
articles proposed were adopted. As the States, when they 
took up civil government, had organized under State consti- 
tutions closely following colonial precedents long familiar, so 
the committee on the Declaration found a common stock of 
grievances and expostulatory resolutions from town political 
clubs, from conventions in remote corners of the States, from 
legislatures and assemblies, from congresses of States, and 
from the first Congress of the United States. These com- 
plaints were so well known to the committee that it seems to 
have turned over to Jefferson the consideration and expression 
of a matter of such common report, the other members of the 
committee practically withdrawing their several sketches of a 
Declaration. When the committee brought in its report all 
the delegates knew what to expect, were familia." witli the 
grievances from their own several States, and were satisfied to 
find those grievances mentioned in the report. But on one 
subject the delegates from Georgia went into opposition: slav- 
ery and the reference to its abolition must be left out, and it 
was left out. It is to be noted that the Declaration is a general 
statement of principles of representative government on which 
the members had a vague unity of sentiment. This formula- 
tion of the abstract principles of government provoked little 



THE DECLARATION AND THE ARTICLES. 77 

debate in the Congress. There was a debate, not concerning 
the principles of the Declaration, but concerning the expedi- 
ency of issuing the Declaration at that time. That the united 
colonies should be free and independent every man in the Con- 
gress believed; and in the prevailing atmosphere of liberal 
principles no delegate seriously disputed that all men are born 
free and equal, however diverse might be the latent sentiments 
in the Congress on the meaning of the words. The Declara- 
tion created no offices, laid no taxes, appropriated no moneys, 
and advocated no party's political ideas. It was a grand, 
perhaps a philosophical, statement of fundamental principle% 
assumed to be self-evident and axiomatic; and there was little 
more of opposition to it than would arise at present were the 
delegates to a convention of men interested in the advance- 
ment of science to draw up in committee a statement affirm- 
ing the doctrine of universal gravitation. To reject the 
Declaration would have been to deny the common opinions, 
not alone of the people of the United States, but the opinions 
of the foremost thinkers of the eighteenth century, avIio were 
rapidly concluding that the principles advocated by the Dec- 
laration must be considered at last as settled. The report of 
Jefferson and his committee passed Congress, was issued to 
the world as the fundamental notions of representative gov- 
ernment, was received by the people with approval, and by 
the world at large as an intelligible summary of fundamental 
principles for a free government. 

But no such harmony prevailed when the Articles of Con- 
federation were bi'ought in. These Articles touched on the 
administration of government, and on the administration of 
government no two delegates agreed. The committee had 



78 HISTORY AND PRECEDENT ARE IGNORED. 

found no precedent or model in any of the colonial or State 
governments. It was perhaps thought that to confeilerate 
on the basis of any particular State would be practically to 
antagonize the remaining twelve States. The articles, there- 
fore, exhibit the original powers of the delegates in con- 
structing a government without a precedent. Even the 
most fundamental notion of English experience for a thou- 
sand years and of American experience for a century and a 
half — the division of government into three departments 
—was ignored. A form of government Avas devised which 
found none to admire it when first proposed, which won no 
friends during its troubled existence, which was accepted 
by the States without enthusiasm and ignored by them 
with impunity, which passed through every phase of neglect 
and contempt, and which at last exj)ired Avithout a sufficient 
representation of its adherents to send forth to the woidd a 
mortuary notice. On 15th of November, \111, the Articles 
of Confederation, which for more than a year had at irregu- 
lar intervals been debated by Congress, were passed by that 
body and sent to the State legislatures for adoption. Before 
the end of July, 1778, Massachusetts, Rhode Island, Con- 
necticut, New York, Pennsylvania, Virginia, Nortli Carolina, 
Soulh Carolina, and Georgia adopted them; New Jersey 
followed in November, Delaware in 1779, and Maryland in 
1781. New Hampshire never adopted them. 

The plan of government outlined by the articles Avas Avith- 
out i^recedent, and it is still Avithout simditude in the gov- 
ernments of the Avorld; yet it is necessary to understand this 
scheme of government in order to understand the causes 
Avhich led to the formation of the Constitution of the United 



EVIL COXSEQUENCES. 79 

States. The Confederation was suggested by Greek models 
wliich liad existed for brief periods among the Greek cities; 
but it lacked that significance which occasional Greek con- 
servatism imparted to those feeble unions. No government 
Avas ever modeled upon the Confederation, the nearest ap- 
proach to similitude being the Confederation of 1861. 

The Congress, having submitted the Articles of Confed- 
ei-ation and perpetual Union between the States as a basis for 
a national government, seemed little awai-e of the feeble gov- 
ernment which they were attempting to set up. There were 
men in Congress who knew, as all the world now knows,% 
that such a government was an anomaly and a bold, fiction, 
and they have left on record their doubts of its efficienc}'' 
formed at the time of its inception. During the five years 
of its journey through State legislatui'es the plan was a con- 
stant confession of impotence and inadaptability 4:o the needs 
of the country ; but when first proposed it was quite con- 
iulently supposed by the majority of tlie delegates to Con- 
gress to be adapted to the welfare of the States. It is not 
my purpose to make of the Articles a man of straw; I on\y 
wish to emphasize a principle in government, that it is not 
safe, in organizing a new frame of government, to break with 
the past and to experiment with the principles of govern- 
ment. The Articles were a compact between the States, and 
the Confederation was styled "The United States of Amer- 
ica." Each State retained, its sovereignt}^, freedom, and in- 
dependence, and every power not expressly delegated to the 
United States in Congress assembled. The States entered 
into a firm league of friendship with each other for their 
common defense and areneral welfare. The free inhnbitnnts 



80 EXAJimA TION OF THE ARTICLES. 

of each State were entitled to all the privileges and immu- 
nities of free citizens in the different States. No State was 
to impose discriminating restrictions on the trade or com- 
merce of another State which were not imposed on its own 
citizens. No State was to tax the property of the United 
States. Fugitives from justice, meaning by that phrase ci'im- 
inals and fugitive slaves, were to be given up, wherever 
found, by the authorities of the State in which they were 
found, and full faith was to be given to the records, acts, 
and judicial proceedings of any State by every State. The 
Congress of the United States was to be composed of dele- 
gates, at least two and not more than seven from each State, 
appointed in whatever manner the legislature of the State 
might determine. The Congress was to meet yearly, and 
each State was to have one vote. No person could serve as 
a delegate for more than three years in any term of six 
years. No State, without the consent of the United States 
in Congress assembled, could send or receive any embassy; 
nor make a treaty with any power; nor lay any duty or im- 
post which would interfere witii any stipulations in any 
treaty entered into by the United States ; nor could any 
State keep bodies of troops or vessels of w^ir in time of 
peace, except its own State militia; nor fit out privateers, nor 
engage in war, without the consent of the United States. 
When land forces were raised by a State fur the common 
defense all officers of or under the rank of colonel were to 
be appointed by the State legislature. All common expenses 
Avere to be defrayed out of a common treasury, which was to 
be supplied by the legislatures of the States in proportion 
to the value of private hinds in each State; but the State 



EXAMINATION OF THE ARTICLES. 81 

legislatures had the exclusive right of laying and collecting 
the taxes and the proportional amounts to be paid to the 
United States. It should be observed that the Confederation 
thus far was chiefly an arrangement between the State legis- 
latures and the Congress composed of delegates elected by 
these State legislatures, and that the taxing power was care- 
fully kept in the conti'ol of the lower house of the State 
legislatures. 

The Congress had the sole and exclusive power to declare 
war and to make peace; to send and to receive embassadors; 
to make treaties of peace; but no treaty could destroy thg^ 
right of a State to lay duties and' imj^osts ; to establish rules 
for the disposition of cajitures and prizes made in war ; to 
appoint final courts of appeal in cases of captures; to be the 
last resort on appeal in all disputes and differences between 
two or more States in certain cases; to regulate the value of 
ail coin struck by the United States or by the States; to 
regulate the standards of weights and measures; to establish 
and regulate post-oftices; to ajDpoint all officers in the land 
forces of the United States excepting regimental officers, 
and all naval officers; to make rules for the government of 
all these forces ; to appoint a " committee of the States " to 
sit in the recess of Congress; to appoint a President of Con- 
gress; to ascertain the necessary sums of money to be raised 
for the service of the United States, and to appropriate and 
to apply these sums for defraying the public expenses ; to bor- 
row money; to build and equip a navy ; to agree ujion the 
number of land forces required, and to make requisitions 
from each State for its quota, to be binding upon the State. 

The consent of nine States in Congress assembled was 



S2 THE CONFEDERATION AXD THE STATES. 

necessary to enable the United States to engage in war; to 
grant letters of mai'k or reprisal; to make treaties; to coin 
or regulate tlie value of money ; to ascertain the sums neces- 
sary for public expense; to emit bills of credit; to borrow 
money; to approj^riate money; to create or equip a navy; to 
raise land forces, or to ajDpoint a commander-in-chief. On 
all other measures, except a question of adjournment, a ma- 
jority vote of the States was required. Every State was to 
abide by the determination of the United States on all ques- 
tions which by the terms of the Articles of Confederation 
were submitted to them; and the Articles themselves were to 
be inviolably observed by every State, and the Union was to 
be perpetual. Nor could any alteration at any time be made 
in any of the Articles unless such alterations were agreed to 
in Congress and afterward confirmed by the legislature of 
every State. As there were but thirteen votes in the Con- 
gress when every State was represented, and the vote of 
nine States was necessary on every essentially important 
measure of government, it followed in the administration of 
affairs that the vote of a fcAV men, of one delegate in each of 
five States, could determine the fate of a proposed bill. For 
the number of delegates from each State was not large, on 
account of the expense to the State of maintaining them, 
and it often hapjDened that for months a State would have 
but two delegates in Congress. A few men, either absenting 
themselves or co-opei-ating as obstructionists, could success- 
fully oppose the 'most important measures at the most crit- 
ical times. 

The Confederation, as an effort toward a national govern- 
ment, set all precedents at defiance. Executive, legislative. 



INHERENT WEAKNESSES. 88 

and judicial powers were confused, or, more correctly 
sjjeakiiig, were wanting. The power which had given force 
to the general assemblies of the colonies — the power to lay- 
taxes and to appropriate moneys — did not exist in the Con- 
federation. It could not levy a tax, and the right to levy a 
tax and the exercise of that riffht is a distinsfnishinac mark of 
sovereign power: it may be said in political relations to dis- 
tinguish a govei'nment from an individual. 

The president of Congress was the speaker of that body, 
chosen from its own number, but no executive authority was 
put into his hands. The feeble effort to provide a judicial^ 
system was Avholly ineffective. Compared with any of the 
thirteen governments which were asked to adopt the Articles, 
the Confederation was only a committee of the States which 
either of them might ignore with safety. Had the Articles 
empowered the Congress to levy and to collect taxes and to 
pass and to execute all laws necessary and proper for the pub- 
lic welfare the Confederation would be classed among the im- 
perfect governments of the past. Constituted as it was it 
cannot be called a government. It lacked the essential 
elements of government. No supreme power had created it, 
nor had the supreme j^ower of the people put it into opera- 
tion. It might request the States, as it did request them, to 
furnish their quotas of men and money, but it could not com- 
pel the weakest of the Thirteen to furnish a penny or to send 
a man into the field. It could not compel obedience, for it 
lacked that sanction Avhich makes government a reality in the 
world. It may be said that the Confederation was only a 
league or treaty, agreed to by the contracting parties, the 
States, a compact or contract to which they, or any of them, 



84 INHERENT WEAKNESSES. 

were amenable only to that degree and for that time whicli 
they, or any of them, might determine. There was no refer- 
ence whatever in the Articles to the idea of nationality ; 
there was no reference whatever to the people of the United 
States as a national unit, a political entity, as the source of 
authority; there was no j^rovision for national citizenship. 
Every American w is first a citizen of his own State. He knew 
nothing of a distinct national citizenship ; it had not yet been 
created. Of the States as parties the Articles spoke repeat- 
edly; of the individuals who composed the States the Arti- 
cles said nothing. The States alone were addressed in it ; to 
them it turned for all supplies. It had no power- to compel 
individuals to minister to its wants. Nor had it power to 
punish offenses against its own authority expressed in its re- 
quests. If the commander-in-chief of the army should com- 
mit treason and should fall into the hands of the Confedera- 
tion the Congress had no ]30wer to try him, much less to 
punish him. It knew nothing of the people, and the people 
knew nothing and cared nothing for the Confederation. Its 
delegates were not chosen by the j^eople, but were appointed 
by the State legislatures, usually in joint ballot of both 
houses. They were paid by the States, if paid at all. The 
whole range of the Confederation in political or civil fields 
was merely speculative and on sufferance from the States. 
The Congress of the Confederation cannot be called a commit- 
tee of the States without qualifying the description. If it 
was authorized to borrow money it had no ability to pay the 
debt ; if it could emit bills of credit it could not be compelled, 
nor could it compel any one, to redeem them. Its attempts 
to perform the work of a real government were futile. If it 



THE CONFEDERA TION A BR OA D. 85 

sought to legislate it ha'] no authority to execute its laws ; 
if it sought to adjudicate a dispute it had no power to en- 
force its decrees. 

Thus the States, possessing all the powers of government, 
wholly ignored the Confederation, their executives, their 
legislatures, their courts soon discovering its weaknesses 
and defects. It was conceived wholly in that time of 
the conduct of the war when patriotism and popular en- 
thusiasm would support, as they often haA'e supported, a 
voluntary committee of citizens acting on behalf of the peo- 
ple for the success of fundamental principles of government. 
But as enthusiasm died away and bitter daily experiences 
made patriotism a costly sacrifice, it was found that the ad- 
ministration, rather than the principles, of the government 
would decide its fate. Yet this anomalous body, " the United 
States in Congress assembled," was the first eff^ort toward an 
administration of the principles of the Declaration of 1776. 
As it discarded all history and all precedent in its formation, 
so it met with the ill, but the necessary, consequences of so 
serious a neglect. The feeblest State of the Thirteen pos- 
sessed civil authority ; " the United States in Congress as- 
sembled" possessed none. Yet this shadow of a national 
government was not so impalpable, so visionary, so insignifi- 
cant as a hasty analysis of it at this distance of time might 
tempt us to believe. With all its functional contradictions 
it was to foreign powers a representative of the new nation. 
It sent Franklin and Adams and Jefferson to foreign courts, 
and there borrowed large sums of money for carrying on the 
war. It made alliances, offensive and defensive, with the 
proudest nations of Europe, and it persuaded his most Chris- 



86 JEALOUSY OF THE STATES. 

tian majesty to send both, money and soldiers to aid tlie 
American cause. Nor was tliis j^ersuasion made without tlie 
ojjposition of influential ministers wlio had the royal car. 
Talleyrand tells us tliat he thought the French alliance with 
t]ie United States a mistake. This Congress of the Confed- 
eration was despised at home by States that were not known 
diplomatically abroad. To Europe, and perhaps to Europe 
only, did this feeble Congress represent the latent nationality 
of the people of America. 

The war had continued five years before the Articles were 
adopted by the States, and two years after their adoption 
the ti"eaty of peace was made. In order to understand the 
critical condition of affairs during this period of seven years 
it is necessary to glance at the administration of public af- 
fairs in America, both by the Congress and by the legisla- 
tures of the States. 

If the theory of the Confederation seems defective upon a 
cursory examination of the Articles, that defect and its con- 
sequences become more serious wlien tlie Articles are exam- 
ined by the crucial test of practical administration. To the 
several States, as to the courts of Europe, the Confederation 
was a foreign government. Members of State legislatures 
repeatedly described it as a foreign government, and every 
legislatui'e viewed with grave suspicion every act passed by 
" the United States in Congress assembled." No living soul 
was responsible to Congress save that small body of men 
whom it had sent to foreign courts. Suspicion in State legis- 
latures soon changed to contempt. A system of representation 
which ignored population gave as much authority in the Con- 
gress to Rhode Island as to Virginia, and Virginia at that 



DOUBLE TAXATION UNPOPULAR. 87 

time was as large as the New England States, New York, 
New Jersey, and Delaware. But this inequality in represen- 
tation was not the chief defect in the Articles. Congress 
could not by its own authority raise a revenue. It was less 
powerful than the State Assembly, for whose rights the war 
was raginof. If the State assemblies chose not to send a 
quota to the Congress, the Congress must do without money 
or obtain it by borrowing. In 1776, buoyed up by popular 
entlmsiasm for the Revolutionary cause, the Congress boldly 
"voted supplies" which the States were to furnish. But the 
States did not furnish these supplies promptly, and two yeai% 
later Congress "urged supplies," which the State legislatures 
failed to send. Excuses were more numerous than the 
houses of assembly or the membership in those houses, but 
the chief excuse was the expense necessary to be met by the 
States for their own defense. A deeper reason may be found. 
The people were burdened by war taxes, which were far 
higher than any taxes known under the colonial regime. 
Business of all kinds was interrupted, and business of many 
kinds wholly destroyed. To be doubly taxed, by State and 
by Congress, was an administration of affairs highly unpopu- 
lar. When the year of grace 1780 had come both Congress 
and the States had passed beyond any dependence on direct 
taxes and had begun to use their credit. No problem in 
the practical administration of public affairs is a more deli- 
cate or a more important problem than the use of public 
credit. Gold and silver had disappeared from general 
circulation, and State legislatures and Congress began to 
issue a paper currency. 

On the 11th of November of this year the four New En- 



88 THE HARTFORD CONVENTION. 

gland States and New York sent delegates to a Convention 
at Hartford. Financial and commercial dangers thickening 
on every side were admonishing thonghtfnl men that the 
welfare of the nation depended upon the laying of some 
foundation for a safe system of finance, by providing taxes 
or duties which should produce a fixed and inalienable reve- 
nue to pay the interest on the funded public debt and make 
possible future loans. The attempt to determine the value 
of private lands had failed. It seemed therefore necessary 
that Congress should be empowered to appoi'tion taxes 
among the States on the basis, not of land, but according 
to their number of inhabitants, both black and white. 
The Hartford Convention made a brief discussion on these 
grave propositions before it, and issued a circular letter to 
all the States: "Our embarrassments arise from a defect in 
the present government of the United States. All govern- 
ment supposes the power of coercion; this power, however, 
never did exist in the general government of the continent, 
or has never been exercised. Under these circumstances the 
resources and force of the government can never be properly 
united and drawn forth. The States individually considered, 
while they endeavor to retain too much of their independ- 
ence, may finally lose the whole. By the expulsion of the 
enemy we may be emancipated from the tyranny of Great 
Britain; we shall, however, be without a solid hope of peace 
and freedom, imless we are properly cemented among our- 
selves." But the wise opinions of the Hartford Convention, 
although sent to Congress, to Washington, and to every State 
legislature, although tending to aid the sentiment toward a 
more perfect union, scarcely colored the prevailing opinions 



STATE OF THE FINANCES IN 1776. 89 

of the day. Pennsylvania, New York, and New Jersey sub- 
stantially approved the proceedings of the Convention, but 
neither of these States alone, nor all of them together, at 
this time, could have so changed public opinion throughout 
the countiy that Congress would be clothed with adequate 
powers. Few people at the time knew any thing about the 
Hartford Convention. Little concerning it can be found in 
the newspapers of the time, nor in the records of the old 
Congress or in those of the State legislatures. But the 
princi^jles of government, administrative in their natures, 
which the Hartford circular advocated indicates conclusively% 
that thoughtful men in America had detected the essential 
and fatal weaknesses of the Confederation before it had been 
adopted by the States. 

At the beginning of the war there were in circulation 
eight million dollars in specie and twenty-two millions of 
paper money. A committee of Congress in 1775 estimated 
that the expenses of tlie impending war would be two million 
dollars, and continental bills to that amount were ordered to 
be struck off by Congress. Later in the same year another 
issue of three millions was made. The bills issued by Con- 
gress were called continentals, to distinguish them from the 
bills issued by the States. Li February, 1776, five millions 
more were printed, a portion of which was in fractional parts 
of a dollar. The paper in circulation at the opening of the 
war was the issues of the several colonies, and usually stood 
at par. The issues by Congress in 1775 and 1776 exhausted 
continental credit at home, and the continental bills began 
to depreciate. Li July, 1777, Congress issued five millions 
and authorized the issue of fifteen millions more. Meantime 



90 THE CONGRESSIONAL LOTTERY. 

the States had begun issuing; colonial scrip fell below par, 
and State currency was thebettei- paper money in the market. 
Continental and State issues began to compete for credit, and 
State issues bore the better price, because " the IJnited States 
in Congress assembled " possessed not one foot of land in all 
America, nor personal pi-operty of any kind winch might be 
made security for its continental issues. The States, on the 
contrai-y, possessed both real and personal property; and all 
of them, excej^t Rhode Island, N^ew Jersey, New Hampshire, 
and Maryland, laid claim to vast areas toward the Mississippi 
River known for many years to come, as they were then 
known, as the "western lands." When, therefore, Congress 
in 17*77 proposed a loan at four per cent., "the faith of the 
United States " being pledged for five millions to be bor- 
rowed immediately, no capitalists would respond; the risk 
was too uncertain. Money was M^orth from six to ten per 
cent, in the market on ample security, and the United 
States could oifer no security whatever. Congress then of- 
fered six per cent, and tried a lottery, that delusive scheme 
which for more than three quarters of a century was the 
familiar and favorite device by which — both in Europe and 
in America^to raise money at the expense of the unluckyi 
for the support of States; for the building and mainte- 
nance of churches; for colleges and for bridges; for corpo- 
ration debts and for ministers' salaries. In our day, though 
outlawed by nearly all the States in their constitutional 
provisions and by the; lav\'S of Congress, lotteries continue 
to Avin the confidence and the support of millions of credu- 
lous people in all parts of the land. But the congressional 
lottery did not prosper, and the States were again urged to 



PAPEn MONET AND PPJCES. 91 

remit their quotas of supplies. The States, however, were 
more negligent than befo e, and Congress sought relief by 
trying a financial scheme considered by its promoters as 
both novel and sagacious. It was to raise the amounts due 
from the several States by anticipation and place the amounts 
received to the credit of the States. This amounted practi- 
cally to a loan by the States to Congress, and it was famil- 
iarly described as "the same goose with a change of sauce." 
In 1777 Congress made another pa[)er issue of thirteen 
millions, and the entire amount of issues made at tlie 
close of that year since 1775 was fifty-five and a half million^ 
In 1778 Congress made fourteen issues of paper, amounting 
to sixty-three and a half millions, and during the first quarter 
of 1779 it issued sixty-five millions more and attempted to 
negotiate an additional loan of twenty millions. The Sta.tes 
meantime eontinuefl their issues, and paper money had 
scarcely any value. Prices rose to a fabuloiis degree. A 
barrel of flour cost $1,575; a pair of boots, $400; four hand- 
kerchiefs are quoted at |100 apiece, and calico, at $85 a yard. 
Complaints rained upon State legislatures and Congress, 
but legislatures and Congress replied by another issue, Con- 
gress ordering forty-five millions. By the 1st of December, 
1779, the total emission of continental paper amounted to 
two hundred millions, of which more than one hundred and 
forty millions had been issued in that year alone. The 
credit of the Confederation had long since disappeared, and 
after 1779 Congress made no more issues. For four years 
the Articles of Confederation had been before the State 
legislatures seekino- ratification. The States and the Con- 
gress had during this time been bidding against each other 



92 CON'GliESS MIGRATES. 

for public credit, and both had lost. There was no public 
credit when on the 1st of March, 1781, the requisite number 
of States were known to have adoj^ted the Articles. On the 
following day the first Congress under the Articles assem- 
bled, and it at once proposed that the States surrender to it 
the right to issue bills of credit. This proposition signified 
that Congress should thenceforth legislate on the credit of 
the State, and the proposition was promptly rejected by 
the State legislatures. During the two years of war that 
followed Congress w\as almost forgotten by the people; it 
was ignored by the legislatures, and it was reviled by the 
press and by the pamphleteers. It was forced by the acci- 
dents of war to wander about. It was at Philadelphia; a 
mob of plowboys drove it from the State House there to 
take refuge in Princeton. At Nassau Hall it resumed its 
endless debates by inconsequential members on inconsequen- 
tial subjects, and from Princeton it adjourned to assemble at 
Aimapolis. It was at Trenton; it was at New York; it had 
been in Lancaster; it might convene without notice, at the 
slightest sign of danger to its members, in the most obscure 
village in the land. Wits were not slow to make merry over 
its misfortunes, and public contempt soon robbed it of every 
suggestion of authority. It was said that Congress could do 
two things — ^it could give bad advice and it could run. 

Happily, by the fictions of international law, or by reason 
of the selfish designs of some Euroj)ean nations now more 
clearly understood than then. Congress stood in the policy of 
these nations for a nation of free j^eople with whom treaties 
could be made and to whom moneys could be loaned. No 
swift steam-ship nor incredibly swifter cablegram laid daily 



RUNNING EXPENSES NOT MET. 93 

before the minister of foreign affairs at Versailles or at 
Vienna the exact condition of American affairs, or the treaties 
perhaps woukl not liave been made or the mone3^s loaned. 
Tlie States, while profiting by these treaties and these loans, 
continued deliberately to violate the articles in the treaties 
aiid to ignore the obligations of the loans. Instead of costing 
two and a half millions the war had cost one hundred and 
forty millions — a sum of money representing but little m.ore 
than the annual interest paid by the United States at the 
present time on its bonded debt. By an energy almost mi- 
raculous about one hundred millions of this war expense ha(^ 
been paid by the Americans, but the amount still due seemed 
of such magnitude that it overwhelmed our fathers with 
fear. Yet this debt is less than one third of the county debt 
of the United States, is but one fifth of the debt of the city 
of New York, and but a few millions less than the debt of 
the city of Philadelphia at the j^resent time. The adminis- 
tration of public finance in this country, whether that admin- 
istration be judged as wise or foolish, according to the theory 
which may be adopted in basing a judgment, has made no 
form of public securities more valuable than State bonds, 
county bonds, and city bonds, based on the credit of our 
counties, and on that of such cities as New York or Phila- 
delphia. 

It was far different in 1784. To meet the expenses of the 
United States for that year about five and a half millions of 
dollars were required ; for running expenses, four hundred 
and fifty-eight thousand dollars ; for outstanding deficiencies 
for the previous year, about one million dollars; and for 
interest, already overdue, on the public debt, about tlu'ce 



94 AN APPEAL FOR LIFE. 

million dollars. To raise this revenue Congress proposed to 
the States that they cede their western lands and grant Con- 
gress the power to pass a tariff bill and to collect customs. 
1 1 was plainly stated hy Congress that the impost should be 
exclusively applied to pay tlie interest on the public debt ; 
that it should continue no longer than twenty-five years, 
and that each State should appoint the revenue collectors for 
its own ports. This request of Congress has been concisely 
described as " an appeal for life." The consent of nine 
States would have made the request a law. Only two 
States, Virginia and North Carolina, yielded assent; and the 
proposition was lost. Congress was helpless; ruin and na- 
tional degradation were impending; tlie 23i"oposition to cede 
the western lands, proposed by Maryland, which had none, 
was languidly taken up by the legislatures ; but their action 
had slight effect in improving public credit. And this neg- 
lect of the States was at a most critical time, for Amei-ican 
credit abi'oad was overdrawn and the foreign loan was ex- 
hausted. American securities were scarcely quoted on ex- 
change; the bankers were getting restless. By almost super- 
human efforts John Adams raised a small additional loan in 
Holland; but no more money could be obtained save at such 
ruinous rates of interest that even Congress dared not prom- 
ise to pay them. 

Then began in our country an agitation over the affairs of 
the nation, the powers of Congress to lay taxes and to regu- 
late commerce, which continued with increasing fervor till 
the old Confederation was supplanted by the more perfect 
Union under which we live. 

With national credit gone ; with State credit vanishing ; 



FINANCIAL CONSTITUTIONS. 95 

with, a craze for printing paper issues to pass current for 
money on whose rudely pi'inted face could be read "to coun- 
terfeit is death ; " with cunningly made counterfeits almost 
as abundant as original issues ; with utter refusal in some 
parts of the country to receive these issues in exchange for 
the necessaries of life, and with the prostration of all busi- 
ness incident to a disordered currency, the legislatuies 
were still debating whether it was expedient to give to Con- 
gress, even for a term of years, the right to regulate com- 
merce for the welfare of the nation. The question whiclv 
now seems so easy of solution was far more difficult to the^ 
legislators of that day than it might now seem to be. The 
question was a question of financial administration, and no 
legislature in the world at that time exercised its powers 
wisely, if its action l)e judged by modern exj)erience, in de- 
termining its course of financial administration. The prob- 
lem of such administration was a peculiarly difficult one, and 
was one of the new, the pi'essing problems which had arisen 
in the conduct of government. There was not gold and sil- 
ver enough to do the business of the world at the close of 
the eighteenth century, and the safe use of credit was not 
yet practically worked out ; nor yet, in the nineteenth cent- 
ury, while prostrating panics still rage at times, can it be 
said that financial principles are so clearly understood among 
men as are the principles of govei'nment laid down by con- 
ventions in constitutions of government. The time may 
come when financial constitutions may be framed among 
men as political constitutions of government are framed. 
But at the time of which I write credit was abused rather 
than used. The people divided into factions on the propo- 



96 THE BOSTON MERCHANTS COMPLAIN. 

sition of giving to Congress the power to regulate commerce. 
There were tariff men and non-tariff men, papei'-money men 
and hard-money men. Some claimed that trade should be 
left to take care of itself ; that if the States should grant 
such a revenue Congress would squander it as it had 
squandered millions before. The States should control taxes 
as they always had controlled them. It was replied that the 
commerce of the country was at the mercy of foreign powers, 
and, as every body knew, thirteen States could never agree 
on the subject of regulating commerce. Congress therefore 
should be empowered to make uniform regulations on the 
subject. , 

The Boston merchants set forth the deplorable condition 
of business, and formally petitioned the General Court of Mas- 
sachusetts to instruct their delegates in Congress to bring 
up the whole question again. The merchants found a leader 
in Governor Bowdoin, who told the State legislature that 
bitter experience proved the necessity of bestowing ujDon 
Congress the power to control trade for a limited time. He 
suggested in 1785 that each State should appoint delegates 
to a Trade Convention in which miglit be settled amicably 
what powers should be given to the general government. 
New York had made a similar suggestion three years earlier. 
But the Massachusetts delegates in Congress, led by Rufus 
King, argued that any change in the Confederation would 
lead to the establishment of an aristocracy ; and the cause 
of the Boston merchants was for the time defeated. 

The nation was bankrupt. The paper issues of fourteen 
presses had confused the currency beyond control. No cen- 
ti'al authority existed. Legislatures passed laws discriminat- 



THE PLANTERS COMPLAIN. 97 

iiig ngainst the people of other States; treaties were ignored, 
and 23ublic honor seemed lost. Amid such prostration of 
credit it might seem incredible that there would continue 
opposition to a remedy for public disorders ; but opposition, 
powerful and popular, existed in every State. It was affirmed 
that Congress had no right to adopt the commercial laws of 
one State rather than those of another. AVhose commercial 
laM^s Avould all be willing to obey ? Nor will the States, it 
Avas said, ever allow Congress to prescribe commercial laws 
of its own, for had not New York, led by Governor Clinton, 
repeatedly refused to give Congress any right whatever t% 
interfere in the trade of that State ? 

But the planters in the South, although by following a 
somewhat different course of reasoning, at last reached the 
same conclusion as had been reached by the merchants of 
the North. " If Congress lays an impost," said the mer- 
chants, " we will gain, because the duty will be paid by the 
consumers and we shall be troubled no longer by the con- 
stant fluctuations in prices caused by the conflicting laws of 
so many States; smuggling Avill be checked and prices will 
be more settled under general regulations." " If Congress 
fixes an impost," said the planters, "we shall no longer be 
obliged to compete with raw products in whatever form 
from the West Indies or from other foreign points, and the 
protection in our favor will raise the price of our products 
and create a home market." The planters and the mer- 
chants thus gradually came to be common supporters of the 
national idea that the regulation of commerce should be 
under the control of Congress. 

Congress itself was quite given up to despair. On the 15th 



98 ^ ENGLAND AND FRANCE LEARN THE NEWS. 

of February, 1786, the committee chosen by Congress out of its 
own number to take into consideration the state of tlie Union 
made its report. Perhaps no more melanclioly and discourag- 
ing report ever came from a committee of Congress. The 
States had 'failed to come up to their requisitions. The public 
embarrassments were daily increasing. It was the instant duty 
of Congress to declare most explicitly that the crisis had ar- 
rived when the people of the United States, by whose will 
and for Avhose benefit the federal government had been in- 
stituted, should speedily decide whether or not they would 
support their rank as a nation by maintaining the public 
faith at home and abroad, and by a timely exertion in estab- 
lishing a general revenue strengthen the Confederation and 
no longer hazard not only the existence of the Union, but 
also the existence of those great and invaluable rights for 
which they had so arduously and honorably contended. 

At the time of this humiliating confession from Congress 
itself information was passing to foreign governments from 
their agents in America concerning the low state of trade 
and commerce and the impending dissolution of the Confed- 
eration. To England, Temple wrote: "The trade and navi- 
gation of the States af)pear to be now at a stand-still." To 
France, Otto M^rote: "It is necessary either to dissolve the 
Confederation or to give to Congress means proportional to 
its wants. It calls upon the States for the last time to act 
as a nation : all its resources are exhausted ; the present 
crisis concerns solely the existence of Congress and of the 
Confederation." 

On the 12th of November following, Washington wrote 
to Thomas Johnson, who ten years before had moved Wash- 



TUE GRAZE FOR PAPER MONET. 99 

ington's appointment to the command of the army, that " the 
want of energy in the federal government, the jiulling of 
one State and parts of States against anotlier, and the com- 
motions among the eastern people, have sunk our national 
character below par and have brought our politics and 
credit to tlie brink of a precipice. A step or two more must 
plunge us into inextricable ruin." A week later he wrote to 
David Stuart : " However delicate the revision of the fed- 
eral system may appear, it is a work of indispensable neces- 
sity. The present Constitution is inadequate ; the super- 
structure is tottering to its foundation, and without helpy 
will bury us in its ruins." On the same day he wrote to 
Edmund Randolph : " Our affairs seem to be drawing to an 
awful crisis." Otto, in a letter of the 10th of October, to 
Vergennes, the French minister, had summed the necessity 
of the hour, " to grant to Congress powers extensive enough 
to compel the people to contribute for . . . the exact pay- 
ment of debts " — that is, that Congress should be empow- 
ered to regulate commerce and to levy taxes. 

The people, meanwhile, alarmed by continuous industrial 
depression and by bankruj^tcy, had sought relief in the very 
evils whicli liad caused the destruction of j^i^iblic and private 
credit. The rage for the issue of paper money broke out 
afresh and more violently than ever. Legislators responded 
to public opinion that the debts should be Avij^ed out with 
paper money. In seven States the hard-money men were 
out-voted; within the j^ear Marjdand, North Carolina, New 
York, New Jersey, Rhode Island, New Hampshire, and Ver- 
mont issued great quantities of paper money. They also 
attempted to enforce its circulation by law. The famous 



100 SHAY'S REBELLION. 

forcing act of Rhode Island led to the celebrated case of 
Trevett vs. Weeden, in which the odious paper-money laws 
were pronounced unconstitutional. But this decision of a 
court of law is only evidence of the lawlessness which pi*e- 
vailed commonly in New England and in some other por- 
tions of the country, and which demoralized society. The 
obligation of contracts ceased to be binding, in the o^^inion 
of the masses; a cessation of the ability to j)ay money creat- 
ing an idea that the obligation to pay had ceased also. Af- 
frays became common. Armed mobs interrupted or pre- 
vented the session of courts. In Massachusetts a reign of 
riot, known as Shays' Rebellion, wliicli is referred to by 
Washington in his letter to Johnson as "the commotions 
among the eastern people," was supported by men maddened 
by the agonies incident to a ruined credit, and who sought 
to vent their blind fury against the supposed authors of 
their calamities, the merchants, the lawyei-s, and the courts. 
The insurgents in Massachusetts were favored by the gov- 
ernors of Rhode Island and Vermont, who secretly connived 
with them and openly aided them Avhenever any opportunity 
was presented to injure the State of Massachusetts. As if 
to make more miserable the desj^erate people, winter sat in 
earlier and fiercer than since the terrible winter at Valley 
Forge. Laborers were out of employment. Merchants com- 
plained of the interruption or of the utter cessation of trade. 
Tax-collectors returned men as tax delinquents who had long 
been re25uted wealthy. The country, as Washington had 
prophesied in his famous Newburg letter, written about three 
years before, " was left almost in a state of nature," and the 
people were learning by their own unhappy experience "that 



NEW JERSEY REFUSES TO PAT. 101 

there is a natural and necessary progression from the extreme 
of anarchy to the extreme of tyranny, and that arbitrary 
power is most easily established on the ruins of liberty 
abused by licentiousness." 

Yet even amid this general bankruptcy several States 
passed laws impairing the obligation of contracts. The 
sense of justice seemed stunned, or lost to the republic. If 
the inviolability of private rights could thus be ignored by 
public legislation, then after that " the deluge." " Interfer- 
ence with private rights and the steady dispensation with 
justice," wrote Madison in after years, " were the evils which 
above all others led to the new Constitution." 

During the winter of 1785-86 Congress rarely constituted a 
quorum. The Confederation was falling to pieces. State leg- 
islatures either neglected to elect or found it difficult to elect 
delegates to Congress. No longer did the office attract the 
great leaders ; it brought neither profit, fame, congenial 
duties, nor an opportunity for promoting the public Avelfare. 
The giants had disappeared and the pygmies had taken pos- 
session of the land. To New Jersey it Avas reserved to 
break the last strand which bound the Confederation to life. 
In 1786 that State refused to pay its quota of one hundred 
and sixty-six thousand dollars. Congress sent its committee 
to reason with the New Jersey legislature. The legislature 
gave the committee a hearing, but no money. Then it was 
that Congress confessed its helplessness. The United States 
in Congress assembled, the pei'petual Union under the Arti- 
cles of Confederation, having received in five months only 
one fourth of the revenue necessary to support it for a single 
day, defective in the theory of government on which it 



/ 02 MADISON A D VO CA TES REFORM. 

claimed foundation, wholly lacking power to exercise those 
functions of practical administration which constitute the 
vitality of government, having passed through every stage 
of misery, from inherent defect to suspected decrepitude, 
from acknowledged decrepitude into open neglect, and from 
common neglect into notorious contempt, ceased to attract 
any more attention among men save for a few flickering mo- 
ments before it expired forever. 

As the merchants of Boston had found an advocate in 
Governor Bowdoin, so the planters of Virginia, a year 
later, appealing to the House of Burgesses, found an advo- 
cate in James Madison. The planters knew, as knew the 
northern merchants, that tlie general government had repu- 
diated its debts ; they knew that the several States had 
begun to scale or to repudiate the State debts, and ordinary 
powers of reason led them to believe that in a short time, 
how soon no man could tell, private individuals would be 
unable to collect the lawful claims outstanding in their 
favor, Madison, on the last day of the session of 1786, suc- 
ceeded in getting the liouse to pass an act in the immediate 
interest of the people of Virginia, but an act the conse- 
quences of which no statesman could have foreseen. He 
began a movement which from obscure origin, perhaps 
among merchants and planters, gained strength Avith every 
slight advance, which passed quickly and almost impercepti- 
bly from State to State, and swelled at last into a national 
impulse that found adequate expression in the Constitutional 
Convention of 1787. 

Between Maryland and Virginia the Potomac River was 
the boundary line. It was the common highway of com- 



THE COMMISSION AT 2I0UNT YERNON. 103 

merce to and from the States along its banks and to and 
from other States drained by it or by its tributaries. The 
duties levied by the laws of Maryland and Virginia were 
constantly evaded by smugglers, who skillfully succeeded in 
landing goods from foreign countries in Maryland as goods 
from Virginia, or in Virginia as goods from Maryland. 
Each State had long accused the other of harboring smug- 
glers, and comj)laints had been brought repeatedly before 
the two legislatures. As early as 1784 Madison had made 
personal observation of these infractions of interstate law, 
and had written to Jefferson suggesting the appointment of 
a joint commission of the two States for the purpose of 
ascertaining the respective rights of the States over the 
commerce of the river. A bill was soon brought into the 
Vriginia House of Burgesses. Three commissioners were 
appointed for that Commonwealth. Three were appointed 
by Maryland, and in March, 1785, the commissioners met 
at Alexandria ; but they soon adjourned to Mount Vernon, 
in order to consult with Washington. As the commissioners 
entered upon an examination of the interests before them 
many questions arose pertinent to the case, but bej^ond their 
powers to settle. Delaware and Pennsylvania were inter- 
ested in the commerce of the river. If it was to the advan- 
tage of Maryland and Virginia to agree to uniform duties, 
was not a similar agreement beneficial to Pennsylvania and 
to Delaware ? If to four States, why not extend the agree- 
ment to all the States of the Union ? Washington said to 
the commissioners, " The proposition is self-evident ; we are 
either a united people or we are not so. If the former, let 
us in all matters of national concern act as a nation which 



/ 04 WA SHINGTON' DECLARED FOR A MORE PERFECT UNION. 

has a national character to sui3j)ort. If the States individu- 
ally attempt to regulate commerce an abortion or a many- 
headed monster will be the issue. If we consider ourselves or 
wish to be considered by others as a united people, why not 
adopt the measures which are characteristic of it and sup- 
port the honor and dignity of one ? If we are afraid to 
trust one another under qualified jjowers there is an end of 
union." 

These ideas advanced by Washington were ideas in the 
mind of many thoughtful men in the country at the time 
and were the seed of the more perfect Union. While yet at 
Mount Vernon the commissioners drew up a report suggest- 
ing that two commissioners be appointed by each State wa- 
tered by the Potomac to report a uniform system of customs 
next year. Maryland at once invited Pennsylvania and 
Delaware to participate in this common commercial policy. 
Virginia, leading the way to a grander result, passed a simi- 
lar resolution extending its provisions, and, sending a copy to 
each State, invited all to appoint delegates to meet in a 
Trade Convention at Annapolis on the second Monday in 
September, 1786. The spirit of the merchants and of the 
planters had taken hold of the legislators. It was this far- 
reaching resolution that the House of Burgesses passed on 
the last day of the session of 1786, and it Avas Madison, ad- 
vocating the cause of the Virginia planters, and of the mer- 
chants of Boston as well, who inserted a clause which met 
the approval of the House, that the Convention about to be 
called should be empowered to take into consideration the 
trade and commerce of the whole countiy, and that Congress 
should be vested with powers to regulate commerce. 



THE PAMPHLETEERS. 105 

On the 9tli of April Otto had written to his government: 
Congress affords the States " a glimpse of the fatal and inev- 
itable consequences of bankruptcy, and it declares to the 
whole world that it is not to blame for the violation of the 
engagements which it has nia<le in the name of its constitu- 
ents. All its resources are exhausted ; the 2:»ayment of taxes 
diminishes daily, and scarcely suffices for the modest exjjenses 
of the government; the present crisis concerns solely the exist- 
ence of Congress and of the Confederation. The most impor- 
tant members of Congress are doing all in their power to add 
to the act of confederation some articles which the present 
situation of affairs renders indispensable; they propose to give 
to Congress executive powers and the right to make exclus- 
ively emissions of jDaper money and of regulating commerce." 

Franklin wrote to Jefferson, then in Paris, that " the dis- 
position to furnish Congress with ample powers is augment- 
ing daily as the people become more enlightened." The 
newspapers teemed with the wn-itings of obscure economists, 
yet not all obscure. Publius * had addressed the American 
public before, and he was soon to address them again in a 
series of brief newspaper articles which have become the 
first American political classic. But there were obscurer men 
than Publius, for Cato and Camillus, Plain Farmer and Cin- 
cinnatus wrote also. Innumerable pamphlets, which are yet 
turning up in our day, bore the burden of the song of "present 
discontent." Even the professors in the colleges were said to 
emerge from the mysteries of logic and of Aristotle to examine 
critically, ere it was too late, the much-talked-of Articles of 
Confederation, under which they suddenly discovered that 
* Hamilton ; the classic is The Federalist. 



106 THE ANNAPOLIS CONVENTION. 

they liad been living for several years. Again were the 
Greek and the Italian republics compelled to do a post- 
mortem service to mankind, and what parallels were drawn 
between the Confederation and the Achtean League, between 
Amalfi and Modena ! Clergymen discoursed from political 
texts, and during the recess of the court the lawyers 
dropped their arguments before the jury and took up new 
arguments in defense of favorite systems of finance as apjjlied 
to a government which had never pursued any system. The 
interests of trade, of the currency, of commerce, and of a 
national government were for the first time in America 
assuming a pronounced political character. The whole nat- 
ure of the absorbing theme was of the administration rather 
than of the principles of government. 

The Trade Convention met at Annapolis in September, 
but the attendance of delegates was so small as to discourao-e 
the few who had assembled from taking into prolonged con- 
sideration at that time the grave questions that agitated the 
country. Neither Georgia nor South Carolina sent dele- 
gates, nor was a single New England State represented. 
Little Avas done except to meet and to adjourn. But before 
adjourning Madison and Hamilton agreed upon a report 
Avhich, drawn with all of Hamilton's skill and foresight, was 
adopted by the Convention after a discussion lasting two 
days. The report urged that a new Convention, composed of 
delegates from each State, possessing greater powers than 
those conferred on the delegates to the Annapolis Conven- 
tion, should be called to meet in Philadelphia on the second 
Monday of May, 1787. Copies of this report were sent to 
the States, and the Annapolis Trade Convention adjourned. 



THE ORDINANCE OF 1787. 107 

Again Virginia took the lead, and on the 9th of November 
the House of Burgesses passed a bill, brought in by Madison, 
that the State should send delegates to the proposed Consti- 
tutional Convention. The first delegate chosen by any State 
was chosen by Virginia, and he was her foremost citizen, 
Washington. Madison was the fifth chosen, and his services 
in the Convention were destined to be greater than those 
of any otlier delegate on the floor. Virginia was followed 
speedily by New Jersey, Pennsylvania, Delaware, North 
Carolina, and Georgia, which in succession elected delegates. 
In Massachusetts a bitter faction delayed the election unUl 
the 21st of February, on which day Congress also gave its 
Aveak and formal consent to the calling of the Convention. 
Rhode Island never sent a delegation ; but before midsum- 
mer every other State was represented. On the 14th of 
May, 1787, the Convention assembled in the old State House 
in Philadelphia, where so many of the delegates had already 
won a just fame. At the same time Congress was in session 
in New York, and on the 13th of July it passed an ordinance 
which has imparted immortal fame to the last labors of the 
Congress of the Confederation; the ordinance. of 1787 was 
passed, providing for the organization of the territory north 
of the river Ohio in which " slavery, except as a punishment 
for crime for which the party had been duly convicted, was 
forever prohibited." This act fixed the boundary of slavery 
in the United States — a boundary continued westward by 
the great compromise of 1820 ; a boundaiy which was the 
theme of endless controversy and again of compromise in 
1850; a boundary which was set aside by the decision in the 
Dred Scott case seven years later ; a boundary which disap- 



108 CONGRESS SETS THE DAY. 

peared at last in the smoke of battle. This boundary be- 
came in our jjolitical history the precedent for a policy of 
slavery restriction, which, at first appearing as the ordinance 
itself, grew at last into a sentiment of the majority of the 
people of the United States and was set into the national 
Constitution in 1865 in the very language which is found in 
the ordinance passed nearly eighty years before. 

When the work of the Constitutional Convention was done 
and the Constitution of the United States was made, it was 
forwai'ded to the Congress of the Confederation to be ap- 
proved by that body and by it to be sent to the executives 
of the States. There were delegates in Congress who did 
not favor any proposition to empower Congress to levy taxes 
or to regulate commerce, and they played the part of obstruc- 
tionists to the end. On the 2'7th of September, 1787, Con- 
gress agreed to send the new Constitution to the States for 
ratification or rejection, and during the following twelve 
months the action of the States was officially made known to 
Congress: the Constitution was adopted. It was left for 
Congress to prepare the way for the entrance of the new 
government, and on the loth of September, 1788, it fixed 
the first Wednesday in January of 1789 as the time for 
choosing presidential electors, the first Wednesday in Feb- 
ruary as the time for the meeting of the electors and the 
choice of a President of the United States, and the first 
Wednesday of March as the day when the new Constitu- 
tion should become the supreme law of the land and the 
President-elect should be inaugurated. Five weeks later, 
when the anniversary of the battle of Yorktown had for 
the seventh time returned, the Congress of the Confedera- 



WHY TEE CONFEDERATION FAILED. 109 

tion expired for want of a quorum, and the Confederation 
came to an end. 

If we seek for the cause of tiie decay of the Confederation 
it is found in its inability to levy taxes, to raise a revenue, 
to regidate commerce. These functions were exercised by 
the State legislatures. For generations the struggle had 
gone on in England between king and Parliament fur the 
possession of the taxing power, and the king had been van- 
quished. For more than a hundred and sixty years the strug- 
gle was continued in America, but the struggle was between 
the Pai'liament and the colonial assemblies, and Parliamer% 
was vanquished. And when peace was won and independence 
was acknowledged the struggle over the taxing power contin- 
ued in a new form, not between the State assemblies, but be- 
tween two systems of government which for the first time in 
America were discovered as essential to the perfection of 
representative government — the local system rejjresented by 
the States, and the national system represented feebly by the 
Confederation. The Confederation was the creation of the 
assemblies — not their master or their equal. It was not at 
all clear to the people how a national government should be 
organized, when, in 1776, their representatives in the Conti- 
nental Congress brought in that report which constituted 
the Articles of the Confederation. A national government 
implied a system of administration whose functions were 
yet obscure. Grinding necessity compelled the calling of a 
Trade Convention, and the Annapolis Convention pointed the 
way toward a more perfect Union. The august powers of 
a supreme law must be exercised before the creation of a 
iiational government could be possible, A double system, 



no THE TWO SYSTEMS. 

local and national, must be worked out, with no abrupt 
departure from precedents, for safety's sake. Each com- 
plete within itself, these two systems were to be inaugurated 
by the continuation of the State governments and by the 
formation of the Constitution by the people of the United 
States. 



VIRGINIA CALLS A CONVENTIOX FOR AMERICA. Ill 



CHAPTER III. 

HOW THE NATIONAL CONSTITUTION WAS MADE, CONFERRING 
ALL NECESSARY POWERS ON THE NATIONAL GOVERNMENT. 

/ 

/. 1787. 

When Congress asked the States to amend the Articles so 
that it might levy a tax according to population and spend tlA 
revenue to pay interest on the public debt, twelve States had 
consented ; but Rhode Island refused, and the amendment 
was not made. When Congress asked again for powers to 
levy an impost by specific duties twelve States assented, but 
New York refused, and the measure failed ; and when Con- 
gress made a third attempt for revenue, asking that the 
power to regulate trade be granted for twenty-fi\'e years, 
twelve States consented, but New York again refused. 
Mindful of these failures, the Congress had consented to the 
calling of a Constitutional Convention. Had this last effort 
to amend the Articles emanated only from Congress itself, 
doubtless the effort would have shared the fate of the earlier 
attempts at amendment, but the call for the Constitutional 
Convention of 1787 came from the leading State in the 
Union, Virginia, and it was known that Washington favored 
the movement. Imitating the example of Virginia, the States 
elected delegates to the proposed Convention, and to this 
day the fame of the men they chose is one of the glories of 
American history. 



112 THE MEN CHOSEN. 

From Virginia came George Washington, the most in- 
fluential man in America ; James Madison, a member of 
the House of Burgesses, and destined to serve under the 
Constitution, soon to be formed, as foreign minister, as mem- 
ber of Congress, as secretary of state, and twice as President 
of the United States ; Edmund Randolph, governor of the 
State and the first attorney-general of the United States ; 
John Blair, chief-justice of his State, a graduate of William 
and Mary College, a great lawyer, and later an associate 
justice of the Supreme Court of the United States ; George 
Mason, author of the famous " Declaration of Rights " of Vir- 
ginia in IIIQ, and afterward chosen one of the first United 
States senators from his State ; George Wythe, a signer of 
the Declaration of Independence, a most eminent lawyer and 
judge in his State, and the legal preceptor of two Presidents 
and of one chief -justice of the United States ; and James 
McClurg, a graduate of William and Mary, a doctor of 
medicine from Edinburgh, and at the head of his profession 
in that State, chosen to represent Virginia when Patrick 
Henry declined to serve. 

New Hampshire sent John Langdon, who had served his 
State in the old Congress, in the General Assembly, and on 
the bench, destined afterward, as temporary speaker of the 
first Congress, to notify Washington of his election to the 
presidency, twice governor of his State, and once United 
States senator; and Nicholas Gilman, the youngest man 
chosen to the Convention by any State, afterward a mem- 
ber of the House of Representatives, and at the time of his 
death a United States senator. 

Massachusetts sent Elbridge Gerry, the fifth signer of the 



THE MEN CHOSEN. 113 

Declaration, a graduate of Harvard, afterward a member of 
Congress, an envoy to France, and the fourth Vice-Presi- 
dent of the United States; Nathaniel Gorham, a delegate to 
the old Congress, a judge, and a conspicuous member of the 
ratifying convention of his State; Rufus King, one of the 
authors of the ordinance of 1787, afterward three times 
United States senator from New York and twice minister to 
the court oi St. James; and Caleb Strong, a graduate of Har- 
vard, one of the framers of the constituli(jn of his State, one 
of its first United States senators and once its governor. 

From Connecticut came William Samuel Johnson, a gracl* 
uate of Yale, a lawyer of eloquence and ability, the agent of 
Connecticut in England in colonial days, the friend of 
Samuel Johnson, chief-justice of his State, member of the 
Continental Congress, first United States senator from his 
State, and president of Columbia College; also came Roger 
Sherman, the one man who is distinguished as a signer of 
the four chief state papers in our history, the Articles of 
Association of 1774, the Declaration of Independence of 
1776, the Articles of Confederation of 1781, and the Con- 
stitution of the United States. He began life as a shoe- 
maker, but by reason of his abilities he became chief-jus- 
tice of his State, which ofiice he resigned after a tenure of 
twenty-three years, to become a member of Congress; and 
at the time of his death he was a senator of the United 
States; and Oliver Ellsworth, a graduate of Princeton, a 
judge in his State, and afterward appointed chief-justice of 
the United States by Washington, and, later, minister to the 
court of France. 

The delegates from New York were Robert Yates, who 
8 



114 TEE MEN CHOSEN. 

had served as a member of the provincial Congresses of his 
State and who afterward became its chief -justice j John Lan- 
sing, a member of the old Congress, and afterward the suc- 
cessor of Robert Yates as chief -justice of the State. To 
Lansing and Yates, who opposed the new Constitution and 
left the Convention, we are indebted for valuable notes on 
the debates in the Convention during their membership. 
Ablest of the New York delegation, and inferior to no mind 
in the Convention, was Alexander Hamilton, who had served 
as aid-de-camp to Washington, as member of the legisla- 
ture of his State, and, though deserted by his colleagues, he 
remained in the Convention and exerted a most extraordinary- 
influence over his fellow-members. Afterward, as first secre- 
tary of the treasury, "he smote the corpse of public credit 
and it sprang upon its feet," To Madison is doubtless due the 
honor of proposing the plan of the national government, but 
the honor of applying that plan later, in practical administra- 
tion, is due chiefly to Hamilton. 

New Jersey chose William Livingstone, a graduate of 
Yale, a member of the Continental Congress, and eleven 
times governor of the State; David Brearley, her chief-jus- 
tice; William Churchill Houston, her member in Congress, 
William Paterson, one of the signers of the Declaration, 
ten times attorney-general of his State, afterward her 
senator in Congress, once her governor, and later apj^ointed 
by Washington a justice of the Supreme Court of the 
United States; and Jonathan Dayton, a graduate of Prince- 
ton, a member of Assembly, of the last Continental Con- 
gress, afterward twice speaker of the House of Rej)resenta- 
tives, and once United States senator. 



THE MEN CHOSEN. 115 

But no State could boast of such delegates as were sent 
by Pennsylvania. Foremost in fame was Franklin, who 
divided with Washington the admiration of the world. " He 
was widely famed before many of his illustrious colleagues 
in the Convention were born; he was the only American of 
his century who was a citizen of the world. In science, in 
diplomacy, in society, in letters, in practical business, in great 
public charities, and in organizations of wide influence to this 
day he was foremost, and of all the Americans in an age of 
great men he is still more talked and written about than any 
save Washington. As president of his State he sat most 
influential in the delegation, and though too feeble by rea- 
son of age to participate actively in the debates in the Con- 
vention, by his presence and by his inexhaustible good 
humor and practical sagacity his influence was so great 
that it may be said that the Constitution could not have 
been framed without him. With him were Thomas Mifflin, 
soldier, member of Assembly, and nine years governor of 
his State; Robert Morris, the financier of the Revolution, 
delegate to Congress, a signer of the Declaration, first 
United States senator from Pennsylvania, and founder of 
the Bank of North America; George Clymer, one of the 
signers, a delegate to Congress, and afterward a member of 
the House of Representatives; Thomas Fitzsimons, a fa- 
mous merchant of Philadelphia; Jared Ingersoll, the leader 
of the bar of his State; James Wilson, a student at four 
universities and the ablest constitutional lawyer in the Con- 
vention, a frequent debater, and afterward professor of law 
in the University of Pennsylvania, and appointed by Wash- 
ington a justice of the Supreme Court of the United States; 



116 THE MEN CHOSEN. 

and Gouverneur Morris, delegate to Congress, and later gov- 
ernor of New York, and afterward one of its United States 
senators. It was Gouverneur Morris who was chosen by the 
Convention to write the Constitution in its final form, because 
his colleagues recognized the finish and elegance of his style. 

Delaware elected George Read, one of the signers of the 
Declaration, a member of the Trade Convention at Annap- 
olis, and afterward United States senator and chief -justice 
of his State; Gunning Bedford, a delegate to the Assembly 
and to Congress, and afterward commissioned by Washing- 
ton as the first judge of the federal district court for 
Delaware; John Dickinson, a judge, a delegate to Congress, 
author of the celebrated letters of a " Farmer " and of the 
Declaration of 1775; while a member of the Supreme Coun- 
cil of Pennsylvania the legislature of that State founded 
Dickinson College in his name. The State also sent Richard 
Bassett, afterward United States senator and chief-justice of 
his State, governor, and United States circuit judge; and 
Jacob Broom, a member of the Annapolis Convention, and 
afterward highly honored by the people of Delaware. 

From Maryland the delegates wei-e James McHenry, a 
member of Washington's military family, of the Senate of 
Maryland and of the Continental Congress at the same time, 
afterward secretary of war under Washington; Daniel of St. 
Thomas Jenifer, of the Council of Safety for his State, dele- 
gate to Congress, a member of the commission appointed by 
Maryland to settle the jurisdiction over Chesapeake Bay, the 
commission which adjourned to Mount Vernon, and whose 
report initiated the movement which led to the calling of the 
Constitutional Convention; Daniel Carroll, delegate to Con-. 



THE MEN CHOSEN. 117 

gress, and afterward, as member of Congress, one of the com- 
missioners that located the capital of the United States; 
John Francis Mercer, a graduate of William and Mary Col- 
lege, a student at law of Thomas Jefferson, a delegate to 
Congress; he refused to sign the Constitution, and opj)osed its 
ratification by the people of his State; he was afterward a 
representative in Congress and governor of Maryland; and 
Luther Martin, one of the distinguished lawyers of his day, 
attorney-general of his State, a champion of State rights, 
and, like Yates and Lansing, he not only opposed the Consti- 
tution, but became one of the four of its members f|pin 
whose letters and notes the debates in the Convention are to 
some extent known. But he is better known to posterity as 
of counsel to Aaron Burr in his trial for conspiracy to over- 
throw the national government, and a recipient, in his last 
days, of the charitable legislation of his State and of the 
meager hospitality of Burr. 

North Carolina chose for delegates Alexander Martin, a 
graduate of Princeton, a member of Assembly, of the first 
and second provincial Congresses, governor, and afterward 
United States senator; William Richard Davie, also a grad- 
uate of Princeton, afterward governor of his State, and en- 
voy to France with Gerry and Ellsworth; William Blount, 
member of provincial assemblies, of the House of Commons 
of his State, delegate to the old Congress, afterward gov- 
ernor of the territory south of the river Ohio, founder of the 
city of Knoxville, and United States senator frofn Tennessee, 
but impeached, found guilty, and expelled in 1797, his im- 
peachment settling the question that in the meaning of the 
Constitution a member of Congress is not a civil officer; 



118 THE MEN CHOSEN. 

Richard DoLbs Spaight, a graduate of the University of 
Glasgow, member of Assembly, delegate to the Continental 
Congress, and afterward a representative in Congress; Hugh 
Williamson, a graduate of the University of Pennsylvania, 
and professor of mathematics in that institution, one of the 
Americans in London examined by the Privy Council on the 
subject of the destruction of tea at Boston, member of the 
North Carolina Assembly, of the Continental Congress, and 
afterward of the Congress of the United States. 

From South Carolina came John Rutledge, a native of Ire- 
land, a student of law at the Temple, inferior to none of his 
contemporaries in learning and eloquence, member of the 
first Congress, governor, judge of the State court of chan- 
cery, appointed by Washington a justice of the Supreme 
Court of the United States, chief -justice of his State, and ap- 
pointed chief -justice of the United States; Charles Cotes- 
wortli Pinckney, educated at Oxford, and afterward minister 
to France; Charles Pinckney, member of Assembly, of the 
Continental Congress, and a reputed author of the system 
of government finally agreed upon in the Convention, four 
times governor of his State, United States senator, minister 
to Spain, and, later, member of Congress; Pierce Butler, also 
an Irishman, a delegate to the Continental Congress, active 
in the debates in the Convention, and first United States 
senator from his State. 

Georgia elected William Few, like so many of his col- 
leagues, member of Assembly and of the Continental Congress; 
afterward United States senator and member of the legis- 
lature of NeAV York; Abraham Baldwin, a graduate of Yale, 
and some time a tutor in the college, president of the Univer- 



WASHINGTON PRESIDES. 119 

sity of the State, of which he Avas one of the founders, mem- 
ber of the Continental Congress, afterward member of the 
House of Representatives, and United States senator; Will- 
iam Houston and William Pierce, both of whom had been 
members of the old Congress. 

Rhode Island refused to choose delegates, and was not 
represented in the Convention. 

By these fifty-five men the Constitntion of the United 
States was made, and at some time during the session they 
were present. Eighteen men, chosen as delegates by eight 
of the States, in addition to the fifty-five, declined to sewe 
and never attended the Convention. 

The delegates who participated in the immortal work of 
framing the national Constitution composed the most remark- 
able body of statesmen that ever assembled on this continent. 
Each of them was famed for some honorable achievement 
in civil life; many of them had served with distinction in the 
war; together they represented the executive, the legislative, 
the judicial, and the military experience of the land; famil- 
iar with the multifarious forms of the questions of the hour; 
acquainted with the practical administration of aft'airs; fresh 
from the people and capable of knowing what constitutes 
the general welfare and how to form a more perfeo-t Union. 
On the 25th of May, 1787, in the assembly hall of the State 
House in Philadelphia, a quorum of States being present, on 
motion of John Langdon, Washington was called to the 
cliair. William Jackson was appointed secretary. Three 
days later, nine States being represented on the floor, the 
doors were shut, a solemn pledge of secrecy was imposed on 
the members, and the work of the Convention began; and it 



120 TEE VIRGINIA PLAN. 

was not till fifty years had passed that the proceedings in the 
Convention were made known. Then, by authority of Con- 
gress, the journal was published, and, of greater value, were 
also published Madison's notes, taken during the debates. 
From the journal, from Lansing and Yates's notes, from 
Luther Martin's letter to the governor of Maryland, and from 
Madison's notes, from the letters of members of the Conven- 
tion written at the time, or from their letters and conversa- 
tions in later life preserved by their friends, their descendants, 
and their heirs, our knowledge of how the Constitution was 
made is obtained. 

On Tuesday, the 29th, Governor Randolph arose and 
opened the work of the Convention by presenting fifteen 
resolutions as a general plan of national government. It is 
known as the Virginia plan. A national government was to 
be established consisting of a supreme executive, a supreme 
legislature, a supreme judiciary, and a council of revision. 
The executive should be chosen by the legislatures and be 
ineligible for re-election. The legislature should consist of 
two branches, should possess a veto power on all laws con- 
trary to the new Constitution, and should have power to 
coerce a refractory State. Members of the first legislative 
branch should be chosen by the people and the first branch 
elect the members of the second from men nominated by 
the State legislatures. Rejaresentation in the lower house 
should be apportioned to the States according to their pop- 
ulation and the proportion of the national expenses each 
State should bear. The national judiciary should be elected 
by the national legislature. A council of revision, consist- 
ing of the executive and of the United States judges, should 



THE PLAX IS DISCUSSED. 121 

revise the laws before they went into operation. New 
States should be admitted into the Union; the new Con- 
stitution could be amended and each State should be guar- 
anteed a republican form of government and the ownership 
of the soil within its boundaries. The Convention then went 
into a committee of the whole on the state of the Union, and 
the Virginia plan was taken up. Charles Pinckney pre- 
sented to this committee another plan for a Constitution of 
which little is known. On tlie following day, and for a 
fortnight longer, the details of the Virginia plan were dis- 
cussed, resolution by resolution. O^^inions were not uniforjii, 
but the weight of numbers declared for a national govern- 
ment of three branches, a legislature of two houses, and 
that the people should elect the members of one house. On 
the organization of the executive every sort of opinion was 
expressed. It should be triple; it should be a committee; 
it should be one person with a council; it should be one per- 
son without a council ; he should be elected by the national 
legislature on joint ballot; by one branch of the national 
legislature; by both branches by lot; by the governors of 
the States; by the State legislatures; by electors; by the 
people directly. It was determined that the executive 
should be one person, elected for seven years, ineligible for 
re-election, and that the national legislature should deter- 
mine the manner of choosing him. 

By this time the 5tli of June had come, and the various 
and irreconcilable ideas among the members were clearly seen. 
Unanimity rajiidly disappeared. The Convention fell apart 
into sectional parties, of the East, of the Middle States, and 
of the South; parties not clearly defined but animated by a 



122 THE NEW JERSEY PLAN. 

sectional spirit. From debating, men fell to wrangling. 
There were individuals and there were whole delegations 
seriously opposed to a national government; to any kind of a 
confederacy of the States; to State sovereignty, or even to 
any change in the old Articles of Confederation. The Nortli 
was commercial; the South was agricultural; there were great 
States like Virginia, and there were little States like Dela- 
ware. It soon became plain that if a Constitution was to be 
framed at all it must be by compromises, and of compromises 
there were three — one on representation, one on slavery and 
the slave-trade, and one on the ccmtrol of commerce. The 
great States were Massachusetts, Pennsylvania, and Virginia, 
great in area and in population; tliey favored a strong cen- 
tral government with rej)resentation in the national legisla- 
ture based on population. The small States were New 
Jersey, New York, and Delaware, and they insisted on the 
principle of representation in the old Confederation, the 
equal representation of the States in the national legislature. 
There seemed to be of no way of compromising the two ideas 
on representation. 

At this critical movement New Jersey, led by Pa'terson, 
took the floor. He held a conservative position. The Conven- 
tion was going beyond its powers. It had assembled to amend 
the Articles of Confederation, not to abolish thein. The idea 
of the Articles was good. The States were sovereign and 
equality of representation was the only possible basis for 
amendment. Popular representation or representation ac- 
cording to wealth was unfair. If population fixed representa- 
tion Virginia would have sixteen votes, Georgia but one. New 
Jersey would never consent to such a plan. 



TEE NEW JERSEY PLAN. 123 

To Patevson's objections the adherents of the Virginia phin 
replied that, true enough, the States were sovereign and equah 
So, too, was every man by nature sovereign and equal to ever}^ 
other man; but when civil government is formed the indivi- 
dual must surrender something for the general good. It war< 
so with the States. A national government could not be 
formed if the States remained sovereign. Government is 
founded on the 2)eople, and representatives should therefore 
be apportioned to equal niimbcrs of the peo{)le. It was the 
people, not the States, that M^ere to be represented. An equit- 
able ratio could be fixed for representation just as four yea|^ 
before the quotas among the States had been fixed by the 
Congress. The ratio was known to all; according to the 
whole number of free inhabitants of both sexes, and three 
fifths of all other persons except Indians not taxed. 

To this view the large States assented. The great States 
had won, and representation in both branches of the national 
legislature was tp be according to ]iopulation. But the small 
States were by no means satisfied. Their leading delegates 
conferred together. By the 13th of June the remaining pro- 
visions ©f the Vii'ginia plan had passed the committee, and it 
was thought b}^ many that a day should be named for consid- 
ering the report, when Paterson claimed the attention of the 
Convention and introduced what is known as the New Jersey 
plan. Congress was to consist, like the old Congress, of a single 
house, empowered to regulate trade and commerce, to levy 
duties, to fix postage rates, and to require stamps on certain 
articles. The executive should consist of a committee, eligible 
for a single term and removable by Congress upon request of 
a majority of the governors of the States. There should be a 



124 WILSON TAKES THE FLOOR. 

suiieme court, naturalization laws of uniform application, and 
the States should send their several quotas of national revenue 
to Congress as under the Articles of Confederation. This Con- 
stitution and the laws and treaties made iinder it were to be 
the supreme laAV of the land, and to this Constitution all 
officers were to make oath of allegiance. In support of this 
plan its friends maintained that it was strictly according to 
the powers of the Convention, and that while amending the 
Articles it amended them in a manner which the people 
would easily understand and accept. Further than to pro- 
pose such a plan the Convention had no powers to go, as 
every delegate knew if he would read his commission. To 
change the Articles required specific powers and the consent 
of all the States, Either the Convention must accept the 
New Jersey plan, or go home and ask for powers to make a 
new government. 

Then the friends of the Virginia plan defended their plan 
of government, and James Wilson took the floor. New Jer- 
sey pro2:)osed . but one department of government, Virginia 
three; by the New Jersey plan the States would be repre- 
sented; by the Virginia plan, the people. By the New 
Jersey plan the minority would rule; by the Virginia plan, 
the majority. By the New Jersey plan State law out-ranked 
national law; by the Virginia plan the national legislature 
could veto the laws of the States. Madison pointed out, in 
defense of the Virginia plan, of which he was probably the 
author, that the New Jersey plan and the Articles of Con- 
federation were substantially the same. The national 
authorit}^ was equally weak by either plan; it could not 
punish for violations of its laws; it could not maintain its 



HAMILTON'S IDEAS. 125 

treaties; it could not prevent one State from invading the 
rights of another; it could not secure domestic tranquillity 
nor guarantee a republican form of govei'nment to the State 
nor provide for the common defense. In no respect by the 
adojition of the New Jersey plan would the people of the 
United States be any better off than they were under the 
Articles of Confederation. 

At this juncture Hamilton arose and with characteristic 
boldness attacked both the Virginia and New Jersey plans, 
and presented brielly and clearly his own ideas of what the 
national government should be. Ho was then just thirt^ 
years of age, youthful in appearance, fascinating in his man- 
ner, and persuasive in his speech. It is said that his ideas 
were more admired than followed by his colleagues. He 
began by saying that he doubted whether the Convention 
would frame the most desirable kind of government. He 
intimated that the people would hardly sustain such a gov- 
ernment, which would, in their opinion, be too aristocratic, 
or at least too undemocratic. His ideas were that the supreme 
legislature should consist of two houses, an Assembly and a 
Senate; the members of Assembly chosen by the people fur 
three years and the members for the Senate to be elected by 
electors chosen by the people, to serve during good behavior. 
The executive was to serve daring good behavior, and should 
be one man, chosen by electors. His powers were to be 
supreme: to veto any law; to conduct war if once begun; to 
make treaties by and with the advice and consent of the 
Senate, and to appoint the heads of departments at his own 
discretion. The national judiciary should be supreme. State 
laws conflicting with the Constitution and the national laws 



126 TWO OPPOSING SYSTEMS. 

were to be void. The governors of tlie States were to be 
appointed by the national government. Hamilton's notions 
were too closely after British models, and they were not de- 
bated. The Convention then returned to the Virginia and 
New Jersey plans. The Virginia plan was the germ of the 
national idea; the New Jersey plan was essentially that of 
State sovereignty. New Jersey advocated a general gov- 
ernment of limited powers; Virginia, a general government 
with powers "extending to every thing or to nothing." 

Mindful of the state of the country and of the need of a 
strong national government, the Committee of the Whole 
reported in favor of the Virginia plan. For a week the 
work proceeded smoothly. The great States had again 
triumphed. Slight modifications in the language of the 
resolutions on representation were made to please the small 
States, and the word "national," distasteful to the New 
Jersey party, was dropped in some places. During the 
remainder of June the Convention went back and forth 
through the resolutions. Should the national legislature 
consist of two houses ? Should its members be twenty-five 
or thirty years of age ? What should be their term '? Should 
there be three executives or one ? But these questions were 
inferior in importance to the great question of the basis of 
representation. Then and there came to light in the de- 
bates, in all their essential character as the examination of 
the resolutions continued, two sets of political ideas between 
which reconciliation seemed impossible. 

/ The State rights men would found the new government 
jon the States as sovereigns; the national men would found 
it on individuals. The little States exclaimed that their 



THE CONNECTICUT COMPROMISE. 127 

riglits and liberties would be swallowed up by popular repre- 
sentation in both branches of the national legislature. The 
great States replied that there was greater danger to them- 
selves than to the small States, ^because it was the experien(;e 
of history that great States contiguous to each other and 
sovereign parts of an imperial system could not agree, and 
that some of them would join the little States. Moreover, 
there was nothing common to the hxrger States. Their 
interests were all unlike. If equal suffrage jjrevailed they 
would be compelled to bear much heavier burdens than 
would the little States in support of the new governnienT. 
The large, not the small States, were the States to make 
complaint. But the small States were not persuaded by these 
affirmations, and a serious interruption in the work of the 
Convention seemed imminent. At this crisis the party of 
compromise, known from their leaders as the Connecticut 
party, made a proposition f Why not adopt both ideas — the 
State rights ideas and the ideas of the Virginia plan '? 
Virginia considered the people as a whole — let one house in 
the national legislature represent the people. l^e^Y Jersey 
considered the people as composed of distinct political com- 
munities — let one house represent these communities. To 
this suggestion of compromise, New Jersey, ISTew York, and 
Delaware would not listen; but the great States accepted the 
compromise. 

But the compromise on representation was not made 
without angry words, without threats of secession, and 
without personal and bitter remarks. The whole matter 
was considered by a committee of eleven, and the debates in 
committee were no less bitter than those in Convention. It 



128 THE BASIS OF REPRESENTATION. 

was evident that a crisis had come. Then Franklin acted 
the part of peace-maker, and his approval of tlie Connecti- 
cut suggestion favorably influenced his colleagues toward it. 
The report was at last brought in, was considered, and was 
agreed to — each State should have an equal vote in the 
second branch, and one representative in the first branch for 
every forty thousand inhabitants. For this concession the 
smaller States insisted that all money bills should originate 
in the more popular branch; that such bills could not be 
amended in the second branch, and that no money could be 
appropriated without the consent of the popular branch of 
the legislature. The vote was taken. The decision was 
reached. The first compromise in the Constitution was 
made. Two weeks passed before the final vote was taken, 
but the compromise was never changed. 

The Convention then gave its attention to the details of 
representation. The resolution fixing representation in the 
lower house at one representative to forty thousand inhab- 
itants did not satisfy some of the delegates. Population, 
they said, was already moving westward. The East must 
ultimately feel the effects. The Western States would soon 
outvote the Eastern States. The proportion was too specific. 
A general system was safer. To determine the rule of 
representation Randolph proj^osed a census. The idea wa.i 
familiar to New York and to Massachusetts, but a census 
broiight difficulties to light. In the Southern States were 
half a million of beings whom it was difficult to classify. 
Were they population or wealth ? They were proj^erty, and 
could be bought and sold, leased and mortgaged, or disposed 
of by gift or by testament. To some delegates from the 



NEW YORK LEAVES THE CONVENTION. 129 

North it seemed that they should be accounted as was live 
stock in the North. They should be classed as property, and 
not as persons. To the Southern delegates they were both per- 
sons and property, and as persons they should have repre- 
sentation in the government about to be established. Hugh 
Williamson at once proposed that the census should be of 
all free whites and three fifths of all other persons. Upon 
this motion the Convention divided by a new line. The di- 
vision into great States and small Stat.es disappeared. The 
division was now on the question of slavery. Massachusetts, 
Pennsylvania, and New Jersey demanded that slaves shonW. 
not be represented at all. Georgin, South Carolina, and Del- 
aware demanded that slaves should be represented equally 
with whites. Lansing and Yates, of New York, had left the 
Convention when the Connecticut compromise passed ; Hamil- 
ton, left alone, could not vote, and New York was no longer a 
member of the Convention. But the remaining States, Vii*- 
ginia, North Carolina, and Maryland, though not unanimous 
in sentiment, favored the view of the three Northern States 
on the slavery question, that slaves should not be represented. 
The compromise on representation in the national legisla- 
ture was not without a precedent in State experience, for in 
several States the method of representation in the two 
branches of the legislature was on the plan of the com- 
promise, Massachusetts and Virginia both having representa- 
tion in their upper house by districts, and in their lower house 
by popitlar vote. But when the problem of slave represen- 
tation came before the Convention no precedent could be 
quoted from the States, for in not one of them could a slave 
vote nor in one of them was he represented. In local gov- 



130 SLAVERY. 

ernraent slavery was an industrial, but not a political, factor; 
in national government slavery at once assumed both indus- 
trial and political characteristics. The slave was both person 
and property, and the general government was to be founded 
on persons and on property. Slavery at once became a new 
problem, if not unexpected at least sufficiently serious to di- 
vide the Convention into two parties. 

Slave labor was as necessary to the South as free labor to 
the North, argued the Southern delegates. All wealth there 
chiefly depended upon such labor. Lands rose in value and 
the production of the country and its imports depended 
chiefly on the labor of slaves. In time of war, as had been 
recently demonstrated, slaves could be relied on in the de- 
fense of the country. As the proposed government was to 
protect property, and that was the j^rincipal reason for 
making it, slaves ought to have equal representation Avith 
the whites. The opponents of slave representation replied 
that slaves were not represented in the State legislatures, 
that they could not vote, nor had any master in the South a 
number of votes in proportion to the number of his slaves. 
The demand of the Southern delegates Avas unprecedented ; 
more, it Avas immoral and contrary to the principles of the 
American goAernments, Avliich Avere founded on the rights of 
man. Slave representation would not be a representation of 
the slave, but an increase in the political poAver of his mas- 
ter. BetAveen these opposing parties, as between the gi'eat 
States and the little States the Connecticut men had risen as a 
party of compromise, so noAV rose a third party, a party of 
compromise. The negro slave Avas not equal to the f]'ee 
white man, yet the negro slave Avas a person, and should. 



TAXATION AND SLAVERY. 181 

therefore, have representation. Perhaps the provision in the 
Articles of Confederation was as near risfht as could be made, 
that three fifilis of the slaves should be counted. Perhaps, 
as slavery Avas a State institution, the slaves might be repre- 
sented in the national Senate. 

But the way out of the difficulty was not clear, and on the 
vote for representation based on a census every State present 
on the floor voted in the negative. No progress thus far in 
arranging the i>lan of representation. It was then moved by 
Gouverneiir Morris that taxation be in the ratio of representa- 
tion, and the motion passed that direct taxes should so be laid. 
But an alert advocate of slave representation detected in this 
resolution a j^roposition to tax the slave population and at the 
same time exclude it from repi'esentation, and the State of 
North Carolina expressed the opinion of the South that unless 
a three-fifths representation were granted the South for her 
slaves she would not join the proposed Confederation. The 
slavery question was thus brought to an issue on whicli the fate 
of the Constitution hung. Every man present knew that the 
work of the Convention must be submitted to the several 
States for ratification. Rhode Island, of course, would not 
ratify if she would not send a delegate to the Convention. 
New York was already displeased over the compromise on 
representation, and had left the Convention. North Carolina 
now threatened to join the number of opposing States. Cer- 
tainly all this opposition must be quieted or no Constitution 
could be framed, nor, if framed, ado^jted. A compromise on 
slave representation must be made. There were six Southern 
and four Northern States in the Convention. If the South 
was satisfied the North should be satisfied A compromise 



132 THE ORDINANCE OF 1787. 

was tlien suggested — tliat representation sliould be according 
to direct taxation, and both representation and direct taxation 
should be according to population. Population should in- 
clude all free Avhites and three fifths of the slaves. 

The second compromise was adopted by the committee, 
and on the 16th of July both compromises on slave ]-ep- 
resentation and direct taxation were reported to the Conven- 
tion. Just three days earlier the last Congress under the 
Confederation, in session in New York, had passed the ordi- 
nance of 1787, forever forbidding slavery north of the river 
Ohio, except as a pujiishment for crime. Thus within one 
week, and almost at the same time, the question on which the 
fate of the Union depended in 1787, and on which three quar- 
ters of a century later in its history it again depended, was dis- 
cussed in Congress and in the Convention. The report of the 
committee brought both compromises, on representation and 
slavery, together, and the vote of the Convention was on the 
whole report. The States divided anew. The small States 
— Connecticut, lS^e^y Jersey, Delaware, and Maryland — voted 
for the rejDort because it gave them equal representation in 
the Senate. Pennsylvania and Virginia joined South Caro- 
lina and Georgia for the same reason, and voted against the 
report. The vote of Massachusetts was lost because Gor- 
ham and King w^oukl not consent that the new government 
should encourage or be fotmded on slavery. The fate of the 
two compromises depended on the vote of North Carolina. 
North Carolina voted yea, and the report jDassed by five 
votes to four. The second compromise was made. At this 
time the Convention was on the point of disruption. The 
large States began to talk of a confederation of their own, 



THE COMMITTEE OF FIVE. 133 

to whicli ultimately tlie small States would be forced to seek 
admission. The small States gave no sign of retreat from 
the position they had gained, and the factions set to work on 
the details of the distribution of powers between the national 
government and the States; on the jurisdiction of the Su- 
preme Court; on the manner of appointing its judges; on 
the qualifications for congressmen, for the President, and 
for judges, and on the method of ratifying the Constitution. 
Ten days more had passed, and on the 26th the various plans 
of government that had been reported were given to a grand 
committee which was instructed to bring in a Constitution. 
The Convention then voted to adjourn for two weeks. 

This important committee consisted of Nathaniel Gorhani, 
Oliver Ellsworth, James Wilson, Edmund Randolph, and 
John Rutledge. When the 6th of August came and the Con- 
vention re-assembled, every member had before him a broad- 
side, neatly printed in large type, of a draft of a national 
Constitution. . It differed from the Constitution to Avhich we 
are accustomed, and the differences show how the di-aft was 
afterward amended. Congress was to choose the President 
for a term of seven yeai's, and he could never be re-elected. 
He was to be called "His Excellency." Pie might be im- 
peached by the House of Representatives, but his trial should 
be before the Supreme Coui't. Pie need not be a native 
American. The draft said nothing of a Vice-President. 
Members of Congress were to be paid by the States that sent 
them, and if a senator wished to hold any office under the 
United States he must have been out of the Senate one whole 
year. Congress could emit bills of credit, could choose by 
ballot a treasurer of the United States, could determine the 



134 THEIR REPORT REVISED. 

qualifications for its membersliip, and could admit new States 
upon a two-tliirds vote of members present. Each State 
should choose two senators. Disputes between States respect- 
ing jurisdiction or territory were to be settled by the Senate, 
or, in case this failed, by a commission chosen, in a cumber- 
some manner, by the Senate and the disputing States. But 
much of the Constitution as we know it can be found in this 
draft of the committee of five. 

As soon as the draft was before the Convention the process 
of revision began. By tliis revision the Constitution was 
made to comprise its present provisions and to take some por- 
tion of its present form. "The People of the United States 
of America" took tlie place of "We the people of the 
States." The title " His Excellency " for the President was 
dropped. The Congress Avas described as consisting of two 
branches, the lower to be called the House of Representa- 
tives, the upper, the Senate. Nearly all the pi-ovisions in 
the Constitution, as we know them, appeared in the report 
of the committee of five. The powers of Congress to lay 
and collect taxes and to regulate commerce, which had been 
in dispute for ten years, were now granted without oppo- 
sition, for every man in the Convention knew by experience 
that a national legislature without those supreme powers 
would be no stronger than the Congress then in session in 
New York. Treaties were to be made, and embassadors and 
judges of the Supreme Court were to be appointed by the 
Senate. 

Amendments to the powers of Congress were at onee jjro- 
posed: to dispose of the unappropriated public lands; to insti- 
tute temporary governments for new^ States; to grant charters 



THE OLD ECONOMT VERSUS THE NEW. 135 

of incorporation; to secure copyrights to authors; to establish 
a university ; to encourage the advancement of useful knowl- 
edge; to fix the seat of government; to establish seminaries 
of learning ; to grant patents ; to provide for executive de- 
jjartments of war, of the navy, of the treasury, of home affairs, 
of foreign affairs, and of State; to secure the payment of the 
public debt; to preserve the liberty of the press; to prevent 
the quartering of troops in any house in time of peace with- 
out the owner's consent ; to exclude religious qualifications 
for office in the new government, and to give the President 
an advisory council of seven. % 

These and other amendments were referred to the com- 
mittee of five. But there were two sections in the draft 
which awakened such hostility and diversity of sentiment 
that the whole report was endangered. 

One of these sections forbade Congress to tax any article 
of export from any State or to tax or to prohibit the impor- 
tation of slaves. The other section forbade Congress to pass 
a navigation act. To organize a government without the 
power to tax exports was an innovation in political history. 
Every nation of the world from time immemorial had taxed 
the products of its soil which any of its inhabitants presumed 
to send away. To tax exports and to admit imports free was 
a maxim in the old economy. Some members expostulated 
against the innovation. The Southern delegates feared if the 
general government was forbidden to tax exports that the 
States would tax them, and thus the agricultural States would 
be at the mercy of the commercial States. And only two 
States, Georgia and South Carolina, insisted that Congress 
should be prohibited from taxing the importation of slaves; 



136 DIVISION- ON- SLAVERY. 

every other State desired to see a speedy end of the whole 
slave traffic. But South Carolina and Georgia held the bal- 
ance of power on any final vote on the slave question. Their 
delegates insisted that without slave labor their rice-swamj^s 
and their indigo-fields would be abandoned, their business 
ruined, and their States made bankrupt, and that they would 
never confederate if Congress was empowered to tax slaves 
or to prohibit their importation. 

Again the Convention divided on the slave question. Con- 
necticut joined Georgia and North Carolina in the demand 
for the free importation of slaves. The old Confederation 
had not intermeddled with slavery; why should the new? 
The slave-pens at Newport were a source of wealth as well as 
the indigo-fields of Georgia or the corn-fields of Pennsylvania. 
To the States, and to the States alone, the control of slavery 
must be left, for they knew best the sources of their wealth, 
and their wealth was the wealth of the Union. Quickly the op- 
ponents of slavery were on their feet, but the arguments they 
l^resented were based on other grounds than that of the immo- 
rality of the slave-trade. ' New England was more prosperous 
than Georgia; Georgia had slaves, New England had none, 
therefore Georgia was less prosperous than New England be- 
cause she had slaves.} Pennsylvania was a land of thrift, of 
rich farms, and of prosperous boroughs; Maryland and Vir- 
ginia were lands of desolation; but the land of desolation was 
the land of slavery, and the land of prosperity was the land 
of freedom. But there was not a State represented in the 
Convention in which slavery was not lawful; not a community 
in America without its slave, save in the disputed land called 
Vermont and in some communities of Methodists and of the 



DEBATES OX SLAVERY. 137 

Society of Friends. A sterner law, a. law more just than that 
of men or any \aw which men might frame, tlie law of frost 
and snoWjjhad driven African slavery out of New England as 
it had not driven slavery out of A'irginia and the Carolinas. 
Had New England possessed the climate of South Carolina, 
African slavery would not have been opposed by a single 
delegate from the North. It was on slavery as a producer of 
wealth that the whole debate in the Convention turned. As 
a producer of wealth in a government founded on wealth and 
on persons slavery became a political factor. As a political 
factor it had already dictated the second compromise in Hie 
Convention, and as a wealth-producing factor it now dictated 
a third compromise. The States of Virginia and Maryland 
had already ceased to import slaves. But over the mountains 
in the valley of the Cumberland, of the Kanawha, and the 
Ohio, the settlers were clamoring for slaves. If South Caro- 
lina and Georgia were permitted to import slaves, the new 
States of the West would be organized as slave States; the 
institution of slave labor would speedily reduce these new 
regions to desolation, and, with the added power of rejDresen- 
tation based on all free whites and three fifths of all slaves, 
the political power of the South and of the South-west would 
overbalance that of the North. The principles of American 
free institutions would be corrupted and the best ends of gov- 
ernment defeated. 

To any suggestion of opposition to slavery on moral 
grounds the Southern delegates and their Northern friends 
on the floor replied that the question Avas one of wealth and 
politics, not of religion and humanity. The question was a 
Union with slavery or no Union at all. The crisis in the 



138 A COMPROMISE POSSIBLE. 

making of the Constitution had corae. South Carolina and 
Georgia would not come into the Union if the importation 
of slaves was to he taxed; some of the Northern States in- 
timated that they would not come into the Union if the 
importation of slaves was not to he taxed. A third compro- 
mise must be effected or no Constitution could be made. To 
a committee of five both sections were sent, the section on 
taxation on importation of slaves, and the provision for a 
navigation act. This committee at once discovered that the 
first section Avas distasteful to the South, and that the second 
section was distasteful to the North. A comj^romise was 
suggested by Gouverneur Morris. On the 25th of August 
the compromise was made. The East consented to the im- 
portation of slaves until the year 1800, and the South agreed 
to give Congress power to pass navigation laws. Upon re- 
consideration the South demanded a longer time, and 1800 
w^as changed to 1808; and also, upon further debate, to please 
the Southern members, no navigation laws could be passed 
except by a two-thirds vote of Congress. But on later re- 
consideration the clause on navigation laws was modified, 
and no limitation concerning them was laid on Congress. 
The third and last great comjDromise of the Constitution was 
thus made. 

August w^as now almost past. Its remaining days were 
spent by the Convention in reducing the draft of the com- 
mittee of five to the form of the Constitution as we know it, 
and on the last day of tlie month the amended draft was 
sent to a committee of eleven, who reported from time to 
time till the 8th of September, when the perfected draft was 
given over by ballot to a committee on arrangement and 



FRANKLIN AS PEA CE-MAKER. 139 

slyle, consisting of Johnson, Hamilton, Goiiverneur Morris, 
Madison, and King. A week later this committee brought 
in their report. The report showed the graceful and elegant 
hand of Morris, and the Constitution, as he revised it, was 
ordered to be engrossed, Hamilton had written the pream- 
ble, and it was prefixed to the engrossed Constitution as a 
general introduction. 

The Constitution thus made pleased no member in all 
its details, and numerous criticisms were heard. Some said 
that they could not sign it because a bare majority of Con- 
gress could pass a navigation act. Elbridge Gerry nan|pd 
nine defects in the Constitution which would hinder him 
and which did hinder him from signing. The Convention 
seemed on the point of slipping away from the work of its 
own hands and disowning its own creation. Franklin saw 
the danger, and he sought to avoid it. He prepared on 
Sunday a characteristic speech to read to the Convention, 
but Avhen the Convention assembled on the following day 
Franklin was too feeble to read his speech, and his colleague, 
James Wilson, read it for him. Perhaj)s this speech gave 
us the Constitution of the United States, "I confess," said 
the aged- philosopher, " that there are several parts of this 
Constitution which I do not at present approve, but I am 
not sure that I shall never approve tliem; for, having lived 
long, I have experienced many instances of being obliged by 
better information, or fuller consideration, to change opinions, 
even on important subjects, Avhich I once thought right, but 
found to be otherwise. It is therefore that the older I grow 
the more apt I am to doubt my own judgment and to pay more 
respect to the judgment of others. Most men, indeed, as 



140 HE TELLS A STORY. 

\yell as most sects in religion, think tliemselves in possession 
of all truth, and that whenever others differ from them it is 
so far error. Steele, a Protestant, in a dedication tells the 
Eope that the only diiference between our churches in their 
opinions of the certainty of their doctrines is ' the Church 
of Rome is infallible and the Church of England is never in 
the wrong.' But though many private persons think almost 
as highly of their own infallibility as that of their sect few 
express it so naturally as a certain French lady who in a dis- 
pute with her sister said: 'I don't know hoAV it happens, 
sister, but I meet with nobody but myself that is always in 
the right — -il n'y a que moi qui a toujoui's raison.' 

"In these sentiments I agree to this Constitution with all 
its faults, if they are such; because I think a general gov- 
ernment necessary for us, and there is no form of govern- 
ment but what may be a blessing to the people if well ad- 
ministered; and I believe further that this is likely to be 
well administered for a course of years, and can only end 
in despotism, as other forms have done before it, Avhen the 
people shall become so corrupted as to need despotic gov- 
ernment, being incapable of any other. I doubt, too, whether 
any other Convention we can obtain may be aHe to make 
a better Constitution. For when you assemble a number of 
men to have the advantage of their joint wisdom you in- 
evitably assemble with those men all their prejudices, their 
passions, their errors of opinion, their local interests, and 
their selfisli views. From such an assembly can a perfect 
production be expected ? It therefore astonishes me to find 
this system approaching so near to perfection as it does; and 
1 think that it will astonish our enemies, who are waiting 



FBANKZm'S SrEECII. 141 

witli conlidence to hear that our councils are confounded, 
like those of the builders of Babel, and that our States are 
on the point of separation, only to meet hei"eafter for the 
pur})ose of cutting one another's throats. Thus I consent to 
this Constitution because I exj^ect no better, and because I 
am not sure that it is not the best. The opinions I have had 
of its errors I sacrifice to the public good. I have never 
whispered a syllable of them abroad. Within these walls 
they were born, and here they shall die. If every one of us 
in returning to our constituents were to report the objections 
he has had to it, and endeavor to gain partisans in suppdfct 
of them, we might prevent its being generally received, and 
thereby lose all the salutary effects and great advantages 
resulting natui-ally in our favor among foreign nations, as well, 
as among ourselves, from our real or apparent unanimity. 
Much of the strength and efficiency of any government in 
procuring and securing happiness to the people depends on 
opinion — on the general opinion of the goodness of the gov- 
ernment, as well as of the wisdom and integrity of its gov- 
ernors. I hope, therefore, that for our own sakes as a part 
of the people, and for the sake of posterity, we shall act 
lieartily and unanimously in recommending this Constitution 
(if apjjroved by Congress and confirmed by the conventions) 
wherever our influence may extend, and turn our future 
thoughts and endeavors to the means of having it well ad- 
ministered. On the whole I cannot help exjn'essing a wish 
that every member of the Convention who may still have ob- 
jections to it would with me on this occasion doubt a little of 
his own infallibility, and, to make manifest our unanimity, 
put his name to the instrument." 



142 TUB MEMBERS SIGN. 

Madison tells us that Gouverueur Morris, in order to gain 
the dissenting members, had drawn up an ambiguous form of 
subscri^^tion, and, that it might have the better chance of 
success, had put it into the hands of Dr. Franklin. It 
was this "convenient form" which Franklin now moved: 
" Done in Convention by the unanimous consent of the States 
present, the 17th of September, etc. In witness whereof 
we have hereunto subscribed our names." 

Before Franklin's resolution was put, Gorham asked that 
the ratio of representation be clianged from one for every 
forty thousand to one for every thirty thousand inhabitants. 
Gorham's motion provoked no debate. Washington put the 
question and expressed his concurrence and hope that it might 
be carried. This was done, and the last change in the Con- 
stitution by the Convention was made. Franklin's speech 
carried the resolution for ratification, and all the States pres- 
ent signed, Washington, as President of the Convention and 
delegate from Virginia, aftixing his name first. The twelve 
States then came forward in their geographical order, be- 
ginning with New Hampshire, and thirty-eight delegates 
signed their names. 

The signatures were attested by William Jackson, the 
secretary, who that day handed over to Washington the 
journal and the papers of the Convention, but not before he 
had carefully burned the precious broadsheets, the copies of 
resolutions, the notes, the questions, the letters, and the briefs 
of remarks which he gathered from the floor, the desks of 
members, and his own table. What would we not now give 
for those records? Sixteen members refused to sign and 
kept out of the room. Hamilton alone signed for New York. 



THE CONSTITUTION SENT TO CONGRESS. 143 

As one by one delegates from all the States affixed their 
names and the Southern members filed to the secretary's 
desk, Franklin, beaming "with h;ippiness anl hope, caught 
siglit of a sun rudely cut on the back of Washington's chair. 
He whispered to a delegate near him that painters had found 
it. difficult to distinguish a rising from a setting sun. "I 
have often and often in the course of the session," said he, 
" amid the solicitude of my hopes and fears as to its issue, 
looked at that behind the President without being able to tell 
whether it was rising or setting. But now at length I know 
that it is a rising, and not a setting, sun." * 

When the signing was over there was a hush in the Con- 
vention. The Constitution of the United States was made. 
The Convention continued in session till evening came; a few 
words were spoken in farewell, and then it adjourned, never 
to meet again. 

On the following morning Major Jackson, the secretary, 
set out for New York to lay before Congress the new Consti- 
tution, the resolutions of the Convention, and Washington's 
letter. But before he had been three hours on his way the 
Constitution was read to the legislature of Pennsylvania. 
It appeared in the Philadelphia morning ^^apers, the Gazetteer, 
the Packet, and the Journal, and in broadsides hastily 
printed. Two days later it was laid before Congress, and on 
the 21st it was published in the New York papers. 

To Madison's notes we are indebted for a knowledge of the 
debates in the Convention. The seci'etary's almost colorless 
journal gives the record of committees and of votes. Yates's 
and Lansing's notes contribute a slight information of pro- 
ceedings up to the time when they abruptly left, early in 



144 . WHENCE CAME THE CONSTITUTION f 

July. Lutlier Martin's True Information gives us insight 
into the opinions of tlie oj^ponents of the Constitution. An 
entry by Franklin in liis diary fixes the place of meeting of 
Convention. Outside of this meager material* we have 
nothing that aids us essentially in gaining any knowledge of 
how the Constitution was made. 

The Constitution was not framed at a single stroke. It was 
the result of long political experience in America. The mem- 
bers of the Convention had constantly in mind the provisions 
in . the State constitutions and the civil institutions with 
which they were familiar. 

The division of the national government into three de- 
partments — executive, legislative, and judiciary — was com- 
mon to that in all the States. But the separation of 
these i^owers in the Constitution is more complete than that 
of any of the States. To the peojjle of Pennsylvania, Dela- 
ware, South Carolina, and New Hampshire the title of the 
executive, " President," was familiar, and it was the title of 
the presiding officer in the Congress of the Confederation. 
The people were also familiar with the term Congress as 
descriptive of a national legislature. The title "Senate" 
for the upper house, representing the States, was familiar to 
the people of Virginia, Maryland, North Carolina, New 
York, Massachusetts, New Hampshire, Connecticut, and 
Rhode Island; and the title for the lower house, "the House 
of Representatives," had been long used in the four New 
England States. That the federal judges should be ap- 
pointed by the President, by and with the consent of the 
Senate, followed a precedent familiar to the people of all the 

*See preface to Bancroft's History of the Constitution, vol, i, edition 1882. 



WHEXCE GAME THE CONSTITUTIOX? 145 

States. The-two years' term of office for members of the 
House of Representatires was a compromise between the 
various terms suggested by the State constitutions ; the sys- 
tem by which one third of the national Senate was to retire 
every two years prevailed in New York, Pennsylvania, Vir- 
ginia, and Delaware. New York gave the precedent for a 
census; the State of Massachusetts that for the President's 
message and his veto power. Perhaps it was from Virginia 
and Massachusetts that the two methods of representation 
in Congress were taken — State representation in the Seniate 
and popular representation in the House. The provision 
giving to the House of Representatives the sole power to 
originate money bills may be found, in language almost iden- 
tical Avith that of the national Constitution, in the constitutions 
of Massachusetts and New Hampshire. The powers of Con- 
gress were powers suggested by State constitutions, or by 
the conditions which made a national Constitution necessary. 
The powers given to the President are analogous to powers 
granted to executives in the States. His command of the 
army and tlio navy had precedent in all the States except 
Rhode Island, and his pardoning power in all the States 
except Rhode Island and Connecticut. His power to nom- 
inate civil and military officers, subject to the action of the 
Senate, followed the constitution of New York, and his 
power to fill vacancies the constitution of Noi'tli Carolina. 
The office of Vice-President found precedent in the deputy 
governor or lieutenant-governor of some States, as Dela- 
ware, Pennsylvania, New Hampshire, South Carolina, and 
especially New York, where the lieutenant-governor pre- 
sided in the State Senate, having no vote unless in case of a 
10 



146 NE W FEA TUBES INTR OD UCED. 

tie. North Carolina gave a precedent for the succession of 
the Vice-President to the office of President. The method of 
electing the President by electors specially chosen for that 
purpose had its original in Maryland, where the qualified 
voters chose " two persons for their respective counties to 
be electors of the Senate " and " the electors of the Senate " 
chose " by ballot, either out of their own body or the body 
of the people at large, fifteen senators." Upon critical 
analysis and comparison the State constitutions in force in 
1787 seem to contain precedents for nearly all of the admin- 
istrative provisions of the national Constitution. But there 
Avere new and distinguishing features in the work of the Con- 
vention. The Constitution was national in character and was 
to be ordained and established by the people of the United 
States. The Constitution and the laws and treaties made in 
accordance with it was to be the suj^reme law of the land. 
United States citizenship, distinct from State citizenship, 
was created, and it was free from all those religious and prop- 
erty qualifications which limited citizenship in the States, a 
liberal precedent, which all State constitutions, save that of 
Delaware, have since followed. The authority of the United 
States over individuals was made direct and wholly inde- 
pendent of the States. A national Supreme Court was es- 
tablished, the powers of the States were limited, new States 
and territories could be formed, and the power to levy taxes 
and to regulate trade was given to Congress. The authority 
to provide for the common defense, to promote the general 
welfare, and to make all laws necessary and proper for car- 
rying into execution all powers was vested by the Constitu- 
tion in the government of the United States. 



THE NATION'S NEW CAREER. 147 

By these liberal provisions the United States was freed 
from the withering and destructive limitations to which the 
Confederation had been subjected, and the nation entered at 
once upon a career of prosperity unparalleled in history. 
But before this career was begun the Constitution submitted 
to Congress by the Convention had to go to the people of the 
United States for ratification. 



148 OPPOSITION IN CONGRESS. 



CHAPTER IV. 

HOW THE CONSTITUTION BKCAME THE SUPREME LAW OF THE 

LAND. 

1'787-187.0. 

The Constitution was scarcely laid before Congress when 
opposition to it began there. Nor did tliose members of the 
Convention who were also members of Congress, and who 
now hastened back to their seats, seem able to stem the ris- 
ing flood of opposition. Ever}' delegate in Congress from 
New York was opposed to the Constitution, and there ap- 
peared a sufficient number from other States to make the 
adoption of the New Plan doubtful. 

That the Constitution was a new plan and was intended 
to supplant the Confederation was reason enough to many 
members of Congress for their opposition. No government 
on earth commits suicide with pleasure. To this form of 
opposition the friends of the New Plan rei^lied that Congress 
had consented to the calling of the Convention, and it could 
just as approjjriately consent to the work of the Convention. 
But Richard Henry Lee, the leader of the opposition, saw no 
relevancy in such an argument, and on the 26th of SeiDtem- 
ber he brought in a long list of proposed amendments and a 
bill of rights to correct those defects which he pointed out 
in the instrument. He specially objected to the provision 
for a Vice-President: to the limited number of members in 



FEDERALISTS AND ANTI-FEDERALISTS. 149 

tlie lower bouse which the Convention had fixed; to the 
danger that a mere 'majority in Congress sliould have power 
to regulate commerce, and to the absence of a provision for 
a council of state to assist the President. But to consider 
these objections was to thresh old straw again. Congress re- 
fused to consider proposed changes in the new Constitution, 
and on the 27tli it was moved to send the Constitution to the 
executives of the States, by whom it should be submitted to 
the State legislatures. To submit the Constitution to its 
fate in the State legislatures was merely to anticipate and 
court defeat in thirteen congresses, and the motion %'as 
amended by the friends of the New Plan who added the 
words, " in order to be by them submitted to a convention of 
delegates to be chosen agreeably to the said resolution of the 
Convention;*' and the amended motion prevailed. 

It was clear that there were two parties in Congress and 
that there would be two parties in all the States, a party for 
the Constitution and a party against the Constitution. The 
names of these parties, the first political parties in our na- 
tional history, were soon on every tongue. Federalists and 
Anti-Federalists. It was also equally clear that the two 
parties were evenly matched in Congress, and that whatever 
was done there with the Constitution would be done by com- 
promise. 

On the 28th such a compromise was made; the Federal- 
ists agreed that Congress should merely submit the Constitu- 
tion to the States, and give no sign of approval or of disap- 
proval of it; the Anti-Federalists, relying on the defeat of 
the Constitution in the States, agreed that the submission to 
the States should be by the unanimous vote of Congress. 



150 THE CONSTITUTION IN PENNSYLVANIA. 

By this colorless action the Constitution, the resolution of the 
Convention, and the letter of Washington were simply sent 
to the State executives by Congress without comment, and 
the fate of the nation Avas thus placed in other hands. 

The Pennsylvania legislature was the first to act. Eleven 
days after the Convention which had framed the Constitution 
adjourned the Pennsylvania Assembly called a Convention 
of the people of that Commonwealth to take into consider- 
ation the proposed Constitution for the people of the United 
States. In Pennsylvania the political feeling was divided. 
Philadelphia, with its immediate environs, was Federal in its 
sympathies; the rural districts were generally Anti-Federal. 
In the cit}^ the evils under Avhich America Avas suffering 
affected the great merchants and the general material wel- 
fare of the city, but in the country less interest was taken 
in the movement for a better national government. The 
Anti-Federalists quickly laid hold of every element of strength 
for their cause. They emphasized the difference between 
the Constitution of the State and the 2)roposed Constitution. 
The State legislature consisted of a single house, which chose 
the president of the Commonwealth, To approve of the new 
Constitution, which provided for two chambers in its legis- 
lature and the election of the President by specially chosen 
presidential electors, was to condemn their own State consti- 
tution. But the Federalists in the Pennsylvania legislature 
had already taken the initiative. The House was about to 
adjourn sme die, and its successor Avould be elected on the 
first Tuesday of the next November, The Anti-Federalists 
expected to win in the intervening campaign and to elect 
enough members to prevent calling a Convention, and in that 



THE SERGEANT-AT-ARMS DEFIED. 151 

way to defeat the Constitution. But they were out-maneu- 
vered. George Clymer, a member of the House, a signer of 
the Declaration of Independence, came directly from tlie 
Convention, where, less than a fortnight before, he had sub- 
scribed his name to the Constitution. He knew the j^lan of 
the opposition, and ho proceeded to defeat it by rising in his 
place on the 28tli of September and moving that the legisla- 
ture call a Convention. The Anti-Federalists were enraged. 
Clymer, they said, was out of order, for Congress had not yet 
officially laid the Constitution before them. Moreover, such 
a motion required notice and three several readings before 
by parliamentary rules it could be entertained. To this the 
Federalists replied, by calling for the question; it was put 
and passed by a vote of forty-three to nineteen. The House 
then adjourned for dinner, but the nineteen adjourned to hold 
an indignation meeting, where it was voted that they would 
stay away from the Assembly and so prevent all proceedings. 
Without the nineteen the House lacked two of a quorum, 
and when at four o'clock the House was called to order but 
forty-five members ansAvered to their names. This was not 
a quorum, and the sergeant-at-arms was instructed to find the 
absent members and to bring them to the bar of the House. 
But the nineteen defied the sergeant-at-arms; he returned 
alone, and the Assembly stood adjourned till next morning. 
The affair was the talk of the town. The coffee-houses were 
full of excited men, and the nineteen were the objects of pop- 
ular hatred. By the time of assembling the Federalists had 
acted. Tlie lodgings of t wo of the obstructionists were forced ; 
they were boldly seized; they were dragged to the State House; 
they were held fast in their seats; a quorum was counted, 



152 THE CAMPAIGN m PENNSYLVAJSriA. 

and an act was passed calling a State Convention for the 
20th of November. Then the maddened and cursing ob- 
structionists were released from their seats; but the plan of 
the obsti'uctionists had miserably failed. 

The campaign in Pennsylvania, begun in the legislature 
with such bitterness, was carried on over the State in the 
same spirit. The printers could scarcely supply the pamphlets, 
the caricatures, the doggerel verse, the broadsides called for 
by party virulence and activity, Centinel,^Plain Truth, Cin- 
cinnatus, and Cato edified the public with their ceaseless 
pens. Let well enough alone, was the burden of one argu- 
ment. The Confederation is well enough. It has managed 
the war and freed the country. Nearly all the evils com- 
l^lained of by the Federalists are due to extravagance 
among the people. And tliis secret Convention, was it not 
plainly an odious cons2)iracy against the liberties of the coun- 
try ? Certainly there had not been much agreement among 
the members; some had gone home angry; others had refused 
to sign, and those who had gone home or had refused to sign 
were just as capable of judging what was for the welfare of 
the country as others who now boasted of remaining and 
signing the document. Franklin was an old dotard; Wash- 
ington a fool; Hamilton and Madison were boys; and this 
James Wilson was only a sharp Scotch lawyer, an aristocrat, 
the rich man's friend. 

To aid the opposition in Pennsylvania, Richard Henry Lee 
wrote his ZiCtters from a Federal Farmer and thousands of 
copies were scattered throughout the State. The Farmer 
admitted that a reformation was needed in the Confederation, 
but aristocracy and centralization, which characterized this 



BELA WARE, PENNSTL VANIA, NE W JERSEY RA TIFY. 153 

New Plan, were not the reform needed. And Lee proceeded 
to lay down the doctrines of State rights. Wilson replied 
in a speech delivered in Philadelphia, on the 24th of Novem- 
ber, which remains, probably, the ablest exposition and vin- 
dication of the Constitution made in a single speech by 
any man of that day. He reviewed the Constitution in a 
masterly way, and decided its fate in the eastefn part of the 
State. But the Anti-Federalists from over the mountains 
were not to be won by fine speeches merely. Public opinion 
elsewherein America was rapidly forming, and Wilson's speech 
crystallized public oj^inion in Pennsylvania. The Penni>^l- 
vania Convention was stirred by the news that on the Gtli 
day of December Delaware had unanimously ratified the 
Constitution. There were illuminations in Philadelphia over 
this event ; opposition to the Constitution gave way, and six. 
days later Pennsylvania ratified by a vote of forty-six to 
twenty-thi-ee. Then the city again gave itself up to dem- 
onstrations of joy. At Trenton, on the 18th of the month, 
after a week's session, the New Jersey Convention adopted 
the Constitution unanimously. Within three weeks three 
States had ratified, and two of these were States Avhich had 
threatened to withdraw from the Federal Convention at one 
time, till the first compromise on representation in the 
national legislature was agreed to. But as the news traveled 
westward through Pennsjdvania it provoked occasional out- 
bursts of violence. Federalists were in some places, as in 
Carlisle, handled somewhat roughly, and the j)rominent lead- 
ers, Wilson and Clymer, of this party were burned in effigy. 
As the compromise on representation broke the force of 
much expected opposition in the small States of the North 



154 THE CONSTITUTION IN MASS A CHUSETTS. 

the compromise on slavery worked favorably for the Consti- 
tution in the South. On January 2d, Georgia ratified unani- 
mously, and on the 9th Connecticut, in Convention but five 
days, ratified by a vote of one hu;.dred and twenty-eight to 
forty. 

To Massachusetts the hope of the opposition now turned, 
and with great assurance. That State had assembled in 
Convention at Boston, on the 9th of January. Affairs in 
Massachusetts resembled affairs in Pennsylvania. The east- 
ern part of the State, Boston and the neighboring towns, 
were mainly Federal, but the central and western towns were 
decidedly Anti-FederaL Tliere Shay's Rebellion had raged, 
and the malcontents and their sympathizers were Anti- 
Federalists. Maine was then a district and belonged to 
Massachusetts, and its people, desirous of having theii" own 
State government, and fearing if the Constitution was adopted 
that their desires would be in vain, opposed ratification. 
Massachusetts was the home of local independence and self- 
government, and the town-meeting was the vital element in 
its civil life. There Avas, therefore, a general feeling against 
delegating powers "of government to a central authority. 
The towns were jealous of the General Court of the State, 
and would be more jealous of a national legislature. To 
delegate such powers to Congress as some said were dele- 
gated by this new Constitution was to encourage despotism. 
At least some men feared so, and among those who feared 
was Samuel Adams, the uTost influential man in the Com- 
monwealth. Elbi-idge Gerry had refused to give the Con- 
stitution his signature. When such men as Samuel Adams 
and John Hancock and Elbridge Gerry doubted, other men 



CHARACTER OF THE CON'VEXTIOX. 155 

should not rush hastily to conclusions. The Anti- Federalists 
were encouraged by the promise of the issue in Massachu- 
setts, and the delegates sent up from the inland towns still 
more encouraged them. But from the sea-coast towns nearly 
all the delegates were favorable to the New Plan. Adams 
himself was aware that the two parties represented very dif- 
ferent interests in the Commonwealth. The Federalists in- 
cluded the delegates who desired a restoration of commerce, 
a revival of business, and the regulation of trade by the 
national legislature. 

On the 9th of the month the delegates, three hundred %nd 
fifty-five in number, constituting the largest Convention that 
was called in any State, entered upon the work before them. 
There sat in the president's chair Governor Hancock, the rich- 
est man in the State, clad in velvet and fine laces. There sat 
King and Gorham and Strong, who had helped to make the 
InTcw Plan. There sat Parsons, soon to be known as a great 
lawyer, and Fisher Ames, soon to be known as a great orator. 
Four and twenty ministers of the Gospel, learned men, repre- 
senting various denominations in the State, many plain farm- 
ers with practical New England wisdom, and some eighteen 
men from the western towns, who had marched under the rebel 
Daniel Shay, completed the membership. So large a Conven- 
tion represented the various thought of the people of the State. 
Everj'- man present Avas familiar with that parliamentary pro- 
cedure which for a century and a half had been observed in 
the town-meetings; and with characteristic thoroughness the 
Convention took up the new Constitution clause by clause. 
But before the debate began the Convention availed itself 
of the experience of Elbridge Gerry, who had not been 



156 PARTIES IN THE CONVENTION. 

chosen one of its members. It was ordered that a committee 
of tliree wait upon him and request him to take a seat in tlie 
Convention to answer any questions of fact from time to 
time that the Convention might ask respecting the passing 
of the Constitution. The searching test to which each pro- 
vision of tlie Constitution was put is plainly shoAvn in the 
record of the debates. The delegates spoke often and much. 
Many delegates feared that the powers of Congress were 
too great for the safety of the people. Unrestricted control 
of a district ten miles square for the federal city was an in- 
centive to tyranny. There was great danger, too, in making 
the President commander-in-chief of the army and navy. 
What prevented the establishment of a military dictator- 
ship? Nor did the Constitution recognize the existence of 
God, nor had it religious or property tests for its officers. 
But not one clergyman in the Convention objected to it on 
either of these grounds. The Convention was composed of 
two classes, the country members and the city members; or, 
by another division, the lawyers, judges, and the rich con- 
stituting one class, and the rough, sun-tanned, hard-handed 
farmers constituting another. Because the rich and the learned 
and the aristocratic members favored the Constitution, if 
for no other reason, the farmers op]30sed it, and it is now 
evident that the vote of Massachusetts on the Constitution 
was the vote of class against class in the Commonwealth, the 
Constitution being the subject in controversy for the time 
being. Aware of the preponderance of numbers on the one side 
and of great names on the other, the Federalists began to fear 
to put the question of ratification. The farmers were Anti- 
Federal, and many wavering delegates were ready to join the 



PAUL REVERE WINS JOHN ADAMS. 157 

farmers in order to gain tlieir political support in State af- 
fairs. Each party accused, tbe other of briber}-. The Con- 
vention was stirred to its center. At last that was discovered 
Avhich every body had long known, that one man's opinion 
would decide the vote of the Convention, and that one man 
was Samuel Adams. He had came up to the Convention an 
, opponent of the Constitution. This was generally known. 
But it was also known that he had not fully made up his 
mind to vote against ratification. Each party courted him, 
but it was the Federalists who succeeded in capturing him, 
and in this way: At the Green Dragon Tavern a caucu%of 
friends of the Constitution was held; resolutions in support 
of it were passed, and a committee was appointed to present 
these resolutions to Adams. The plan had been worked out 
b}'' the Federal bodies with the help of a great number of 
mechanics of Boston, to whose general interests Adams had 
always been deeply devoted. At the head of the committee 
was Paul Revere, whose name still stirs patriotic memories. 
Adams received the paper, i*ead it, and inquired: 

" How many mechanics were at the Green Dragon when 
these resolutions passed ? " 

"More, sir, than the Green Dragon could hold," answered 
Revere. 

" And where were the rest, Mr. Revere ? " 

"In the street, sir." 

" And how many were in the street ? " 

" More, sir, than there are stars in the sky." 

T!ie Federal plan worked. Adams, like Lincoln, had abid- 
ing faith in the people. He changed his opinions and fav- 
ored ratification. When, in the debate on the two-yeai"s' terra 



158 MASSACHUSETTS RATIFIES. 

of membersliip of the House of Representatives Adams asked 
Caleb Strong wliy the Convention made the term so long, as 
the election to the lower house in Massachusetts was annua], 
Strong replied that the term was a compromise. Adams 
said, "I am satisfied," A Federalist sitting near ]Mr. 
Adams said: " Will Mr. Adams kindly say that again ? " "I 
am satisfied," he rej^eated; and no furtlier objection on that , 
clause was made. When it was known that Adams favored 
the Constitution the Federalists felt safe. On the 6th of 
February the vote was taken; it stood one hundred and 
eighty-seven to one hundred and sixty-eight in favor of rat- 
ification. 

Tlien Boston took uj) the spirit of that vote: bonfires were ' 
made, streets illuminated, bells rung, toasts drunk, and gen- 
eral joy prevailed; and the street on which stood the meet- 
ing-house in which the Convention had assembled was on that 
day renamed, and has ever since been called Federal Street. 
But before the vote was taken ten amendments were pi'o- / 
posed to the Constitution, and with these suggested amend- 
ments the Constitution stood ratified. Massachusetts was 
thus the sixth State to ratify. Her action was not hastened 
by news from other States that had ratified, for there was no 
news. The mails for weeks, between Philadelphia and New 
York and Boston, had been interrupted. The Anti-Federal- 
ists accused their opponents of fraud and of stopping the 
mails. But the condition of the roads, the inclemency of the 
weather, the indifference of the post-boys, and the imperfect 
provision for carrying newsj)apers long distances were the 
true explanation. 

Although two thirds of the requisite number of States had 



THE CONSTITUTION IN NEW UAMPSHIKE. 159 

ratified the Constitution, its fate in the remaining States was 
so uncertain as to continue anxiety among its friends.. New 
Hampsliire was quite like Massachusetts in its feelings toward 
the New Plan, and, like Massachusetts before the Boston Con- 
vention, it was claimed by both j^arties. Thus far, however, 
the East had steadily su^^ported the new Constitution; and 
Avhen it was known that on the 19th of February New Hamp- 
shire had assembled in Convention at Exeter there Avas a gen- 
eral expectation of a speedy, and probably of a unanimous, 
ratification. Bat New Hampshire had no great cities along 
its coast; no great cities on its rivers. The State Avas a^i- 
cultural, not commercial, and the delegates Avho appeared at 
Exeter voiced the feelings of the country districts in opposi- 
tion to the New Plan of national government. The fcAV Fed- 
eralists in the Convention saAV only defeat in an immediate 
vote, and they Avere glad to agree to an adjournment till the 
third Wednesday in June, by Avhich time they hoped that 
ratification by other States Avould either make the number 
sufiicient to adopt the Constitution without Ncav Hampshire 
or sufiicient to influence a favorable A'Ote in Ncav Hampshire. 
The adjournment of the Exeter Convention caused joy among 
the Anti-Federalists. They hurried the neAvs into States that 
had not yet acted, and specially into Maryland, Avhich had called 
its Convention on the 21st of April. Maryland held senti- 
ments toAvard the Constitution the opposite of those in Penn- 
sylvania. In Pennsylvania the leaders had favored, the mass 
of voters had opposed, the Constitution; in Maryland the 
majority of the electors fa\'ored it, the leaders opposed it. 
In vain did Luther Martin and Samuel Chase declaim against 
the NeAV Roof. Maiyland, next to Virginia, had inaugu- 



160 2IARYLAND AND SOUTH CAROLINA RATIFY. 

rated the movement wliicli had brought about the new Con- 
stitution, and the people of the State sent up to the Balti- 
more Convention more than sixty pronounced friends of the 
new government. To obstruct, to make long speeches, to 
devise delays, to move an adjournment — all failed. The 
vote was cast on the 25th of the month, and the question of 
ratification was carried by a vote of sixty-three to eleven. 
To the Constitution thus ratified the minority proposed 
twenty-eight amendments. 

Great was the joy of the Federalists when the news came 
from Maryland. Only two more States were needed, and the 
Constitution would be the law of the land. South Carolina 
convened on the 12th day of May, and South Carolina, next 
to Virginia, was the richest State of the South. There were 
those in the South Carolina Cowvention, as there were many 
more in the State, who took alarm at the prospect of the 
regulation of trade by a national government. The Eastern 
States had shij^s, the Southern States had goods; the exclu- 
sive control over commerce would put the Southern at the 
mercy of the Eastern States. But these fears were allayed 
by the speech of Charles Pinckney, who persuaded the Con- 
vention that the general government would regulate the trade 
of the whole country in an equitable manner. On the 23d 
day of the month the ballot was cast, and the Constitution was 
ratified by a vote of one hundred and forty to seventy-three. 
With the vote of ratification was sent up four amendments, 
insisted on by the minorit}^ Weeks passed before the vote 
in South Carolina reached New England, and on the 17th of 
June, the day of all New England days, the New Hampshire 
Convention had re-assembled, and the Convention of New 



VIRGINIA AND NEW YORK IN CONVENTION. 161 

York met at Poiiglikeepsie. On the 2(1 of the moiitli 
the Convention of Virginia had assembled at Eichmond. 
After four days the Exeter Convention adojjted the Constitu- 
tion by a vote of fifty-seven to forty-six, the minority send- 
ing uj) twelve amendments. New Hampshire was thus the 
ninth State to ratify, and the Constitution "^s by its own 
provisions the Supreme Law of the Land.y 

But New York and Virginia were now in Convention, and 
a Union without these two great States would soon prove a 
divided Union. When New Ilamjjshire ratified, Virginia had 
been in Convention neaily three weeks, and the enemies%&f 
the Constitution there had been^marshaling every argument 
they could devise against it. yTatrick Henry led them. He 
had refused to attend the Philadelphia Convention, and he 
now refused to give his approval to its work. Henry could 
not argue, but he could make winning speeches. Madison 
and Randolph and John Marshall could not always make 
winning speeches, but they could argue. Henry's objections 
to the New Plan were summed up in one sentence : The Con- 
stitution is a consolidated government. On the dangers of 
such a government he talked until the 14th of June had 
come. Ten days jjassed in the debate on a motion to take 
up the Constitution clause by clause. Henry proposed a 
bill of rights and twenty amendments. On the 25th of 
the month the vote was taken on adoption; eighty-nine voted 
to ratify and seventy-nine voted nay. But the victory in 
Virginia was due to the influence of one of her citizens who 
was not a member of this Convention. Washington exerted 
himself in behalf of the Constitution which, in Convention, 
he had been the first to sign; and the influence of Washing- 

n 



162 WASHINGTON'S INFLUENCE. 

ton ill Virginia was equal to at least ten votes in the Rich- 
mond Convention. 

By the 28th of June the news from New Hampshire and 
the news from Virginia met in Philadelphia and New York 
city, and the Federalists in all the great towns of the coast 
prepared to celebrate the adoption of the Constitution with 
appropriate ceremonies on the approaching 4th of July. 
What time, they said, was more fitting? The anniversary 
of national independence should be made more glorious by the 
celebration of the adoption of the Constitution. Of the pro- 
cessions, the speeches, the toasts, the mechanical and industrial 
displays on great floats dragged uj) and down the streets; 
of the huzzas, of the salutes and salvos, of the waving of 
flags, the display of bunting by day and the illuminations 
at night, of the joy of the people that at last they had safely 
come under the New Roof, and that tlie more perfect 
Union was formed, the newspaj^ers made ample record, and 
the memories of men long kej^t a vivid picture. But in 
Albany and in Providence the rejoicings were interrupted 
by Anti-Federalist mobs and riots. There were some bloody 
affrays. 

New York had been assembled in convention some three 
weeks, and George Clinton was its president. Perhaps no 
m.an who claimed to be an American was more bitterly op- 
posed to the Constitution than Clinton, and perhaps no 
American had greater influence in the State of New York. 
To an understanding of the Constitution the people of New 
York, since the 30th of October of the previous year, had 
been specially favored, for on that day began to appear, in 
the N'ew Yorh Packet, a series of papers signed Publius, in 



THE FEDERALIST. 163 

exposition of the Constitution. Copied into other newspa- 
pers, the articles by Publius were widely read. It was soon 
discovered that Publius was the name chosen, not by one, 
but by three men who favored the New Plan — Hamilton, Avho 
suggested the articles, Madison, and Jay. These articles are 
known to us as The Federalist, the ablest exposition of the 
national Constitution ever made. To the readers of the news- 
papers in which they appeared they were merely the letters 
of some political partisans. On the 4th of April, 1788, they 
had ceased. Jay had ceased to write. liamiltcm was busy 
with a large legal practice. Madison was defending The 
Constitution in Virginia. But when the Convention of New 
York assembled at Poughkeepsie Hamilton resumed the 
series and wrote the last ten papers. Madison, in fourteen 
papers, wrote on the plan of the new government; on its 
conformity to republican principles; its powers; its relation to 
slavery and the slave trade; its mediating office between the 
Union and the States; its separation into three departments 
and the mode of constructing the House of Representatives. 
Hamilton, in sixty-three numbers, discussed the defects 
of the Confederation; the energy of the jjroposed national 
government; its relation to public defense, to the executive, 
to the judiciary, to the treasury'-, and to commerce. Three 
papers were written jointly by Hamilton and Madison. Jay, 
in five papers, discussed the general plan of the new Con- 
stitution. The influence of this series in 1787-88 must not 
be judged by the fame of The Federalist a century later. 
Many then thought that these Federal letters were far in- 
ferior to the Objections to the Federal Constitution, by 
George Mason, or The Fhartxination of the Constitution of 



164 CLINTON KEEPS BACK THE VOTE. 

the United States of America, by "An American Citizen."* 
Nor in the opinion of some were tliey more persuasive than 
the Observations on the New Constitution, by a " Co- 
lumbian Patriot,"! nor the Address to the People of the 
State ofNeio York, by " A Plebeian." | 

Time has tried the writings of the fathers, and llie 
Federalist is their one classic book on the Constitution of 
the United States. 

But the people of the State of New York to whom Pub- 
lius wrote wei-e little influenced by The Federalist. Clinton 
opposed the Constitution, and Clinton's friends opposed the 
Constitution, and the Poughkeepsie Convention was mostly 
composed of Clinton's friends. A vote on ratification might 
have been taken any day of the session up to the 24th of 
June, and the vote would have been almost unanimously 
against ratification. Not to vote, but to delay, was the Anti- 
Federal plan. New Hamjjshire had not yet been heard from, 
and it Avas pretty sure that when the news came it would be 
news of the rejection of the Constitution. Virginia had not 
yet voted, but Virginia was counted on as Anti-Federaj. Clin- 
ton therefore kept back the vote, hoping that nine States 
could not be found to ratify, and the blame of a rejection 
could not then be put u2)on New York. But if New Hamp- 
shire should ratify, then New York must follow or remain 
out of the Union. To ratify meant to bury every objection 
which Yates and Lansing and Clinton could find in the New 
Plan and to adopt a government whose plan was hateful; to 
refuse to ratify meant State independence, an expensive gov- 
ernmental establishment, heavy taxes, and constant danger 

*Teucli Coxo. f Elbridge Gerry. ;{: Mela nctliou Smith. 



HAMFLTON CARRIES FEW YORK. 16b 

from neighboring powers — the United States on the east and 
south, and England on the north. But the Convention was 
proud; it was confident that the State could svipport an estab- 
lishment, and equally confident that the Constitution was 
essentially bad. The Federalists in the State lived chiefly in 
New York city, and there they tried to awaken some enthu- 
siasm for the Constitution by a parade, by speeches, and be- 
fore the day Avas over by attacking the office of an Anti- 
Federalist paper, the Ifew York Journal. This display of 
party vigor won no new friends, and it was generally felt 
that the Convention would refuse to ratify. In the Con^n- 
tion with others sat John Jay and Alexander Hamilton, and 
Hamilton spoke ten times. He attempted to defend the 
Constitution before a body opposed to it and to win those 
opponents into voting for it. Chief among the speakers in 
Clinton's party was Melancthon Smith. He attempted to 
answer Hamilton, but he ended by deserting his party and. 
joining the Federalist minority. Never before or since in 
American history was such a political victory won as Hamil- 
ton won in the Poughkeepsie Convention. He is said to 
have remarked, subsequently, that he could see the delegates 
change their opinions. The Anti-Federalist majority was 
transformed into a minority, and the only question pending 
was how to compromise on party diiferences. Thirty-two 
amendments were proposed, and the Anti-Federalists insisted 
that ratification, if it came at all, must be on condition that 
these amendments be embodied in the new Constitution. 
But conditional ratification was without precedent, and before 
replying to the inquiry of the minority, Hamilton met Madi- 
son in conference at New York and put the question, Can a 



166 TEE CONSTITUTION IN NORTH CAROLINA. 

State ratify conditionally and afterward withdraw from the 
Union if the conditions are not satisfied ? Madison's reply 
was an emphatic negative. Conditional membership in the 
Union meant a broken Union, and the Union could not pro- 
vide for its own dissolution. On the 26th of the month a 
vote was reached; it stood thirty for ratification, twenty- 
seven against, and thirty-two amendments were proposed. 
Although victors by so small a majority the Federalists 
were the victors, and their victorious leader was Hamilton. 
He was just entering his thirty-second year. To his argu- 
ments and eloquence the victory was due. The friends of 
the Constitution assembled in force in ISTew York city; they 
built a fair ship of state, which they placed on wheels and 
drew up and down the streets amid loud huzzas, and the 
name of the ship was — Hainilton. 

On the day when the vote in New York was reached, 
North Cai'olina had been five days in Convention at Hills- 
borough. Opposition was strong. While in consideration 
of the Constitution, clause by clause, came in tlie news of 
ratification by Virginia, by New Hampshire, and by New 
York, and ajso the, letter from Governor Clinton advis- 
ing the States to call another Constitutional Convention. 
Eleven States had ratified; should North Carolina refuse? 
They objected to many parts of the Constitution; they 
l^roposed a declaration of rights in twenty articles, and 
amendments to the number of twenty-six. On the 2d of 
August the Convention adjourned without voting on the 
question of ratification. It was not until November 21 of 
the following year that North Carolina ratified, and not until 
May 29th, 1790, that Rhode Island adopted the Constitution. 



TEE CONSTITUTION' BECOMES THE LA W OF THE LAND. 167 

It bad been i-esolved, on the last day of the session of the 
Philadelphia Convention, that as soon as Congress should re- 
ceive official information that nine States had ratified the Con- 
stitution the new government should speedily go into effect; 
electors should be appointed by the States for the purpose of 
choosing a President and a Vice-President; senators and rep- 
resentatives should also be chosen in the several States; the 
Senate should convene and appoint a president of the Senate 
for the sole purpose of receiving, opening, and counting the 
votes for President, and that after he should be chosen 
the Congress, together with the President, should, without 
delay, proceed to execute the Constitution. This last recom- 
mendation of the Convention accompanied the text of the 
new Constitution to Congress, and the civil programme which 
it outlined was carried out. 

Eleven States having ratified, Congress received official 
information and proceeded to fix the date when the Consti- 
tution should become the Law of the Land. Many days 
were spent in debating what place should be chosen for the 
national capital. Should it be ISTew York, or Philadelphia, 
or Trenton, or Lancaster, or Baltimore ? And after many 
curious reasons for each of these towns New York was 
chosen. It was decided that presidential electors should be 
chosen on the first Wednesday of January, 1789; that the 
electors should meet and vote for President on the first 
Wednesday of February, and that the new Congress should 
assemble on the first Wednesday in March, which in that year 
came on the 4th of the month. The presidential electors were 
with general uniformity in the States appointed by the 
State legislatures, which doubtless was the manner of choice 



* 



/ 68 WA SEING TON AND ADAMS ELECTED. 

intended by the framers of the Constitution. There was no 
organized campaign, no struggle between well-defined parties. 
It was generally expected that the presidential vote would 
be cast for the foremost American, but speculation and in- 
trigue entered into the choice of Vice-President. Nearly 
a month passed after tlie date for the assembling of Congress 
before a quorum appeared in both houses. The House 
got together a quorum on the 1st of April; the Senate 
elected its president ^ro tempore, John Langdon, on the Gth. 
On that day the houses met in joint session, and the votes 
were counted. There were sixty-nine votes in all, and there 
were sixty-nine ^•otes for George Washington for President. 
For Vice-President John Adams, of Massachusetts, received 
thirty-four votes, the remainder being scattered among sev- 
eral competitors. The speaker therefore declared George 
Washington elected President, and John Adams, Vice-Presi- 
dent of the United States. A messenger was dispatched to 
Mount Vernon, another to Braintree, to acquaint Washing- 
ton and Adams of their election. 

After the lapse of a century and more, the events con- 
nected with the Constitution of the United States probably 
are more clearly understood than they were to the actors 
themselves in those events. A few men took the initiative 
toward an amendment of the Articles of Confederation, A 
few men advocated reform from their places in State legis- 
latures, as did Madison, or from the quiet of their homes, as 
did Washington. A few men were chosen by Conventions 
to make the Constitution. They assembled in Philadelphia; 
they met in a Convention with closed doors; they took an 
oath of secrecy ; they compromised their differences and 



THE MEN WHO DID IT. 169 

made the Constitution; not a new plan, apiece of work sud- 
denly struck off, but an expression of American experience 
in politics and in representative government. The Consti- 
tution went to Congi-ess, where a few men succeeded in get- 
ting it sent, with decency, to the executives of the States. 
A few men welcomed the Constitution, were elected members 
of State Conventions, and in every State, save two, labored 
for it against every form of opposition. Samuel Adams and 
Fisher Ames in Massachusetts, John Langdon in New 
Hampshire, Roger Sherman in Connecticut, David Brearley 
in New Jersey, Benjamin Franklin and James Wilson in 
Pennsylvania, Alexander Hamilton in New York, Washington, 
Madison, and John Marshall in Virginia, Charles Pinckney 
in South Carolina, Abram Baldwin in Georgia, and a few 
other men of similar character and sentiments carried the 
Constitution through the State Convention. 

The people did not vote directly on the question of ratifi-W^ 
cation. A popular vote would, undoubtedly, have defeated 

it. The Constitution was the work of men wliose thoughts . 

werejaj_m advance joi- thai of the mass of Americans. Its 
liberal spirit has caused tlie modification of all the first con- 
~stTtutions of the States, and has become the model for con-_ 
stitutions of new States admitted into the Union. We would 
err in imputing to our ancestors that understanding of the 
national Constitution which is now familiar knowledge in 
America. To them the Constitution was a theory; to us it is 
rather an administration. To them the problem was, What 
-caTTrTHo ? To us the problem is. What will it do ? We may 
safely affirm that few persons in private life in 1789 ever 
learned to understand the Constitution. Many of the eminent 



170 EXIT TFIE confederation: 

men wlio iramed it made such an interpretation of its pro- \ 
visions as by the clear light of subsequent events in our na- I 
tional history must be said to be wrong. The national gov- / 
ernment had been administered above seventy years before [ 
its essential character as the Supreme Law of the Land was \ 
plainly admitted by the people of the United States. But the \ 
interpretation of the Constitution, by writers, by legislators, 
by journalists, by political parties, by Presidents, by Con- 
gress, by the Sujsreme Court, cannot be told within the limits 
of this book. Nor has interpretation yet fully crystallized. 
Interpretation must ever be changing as change the condi- 
tions of affairs in our country. 

After the 1st of January, 1789, there never assembled a • 
quorum of the old Congress. On the evening of March 3 a 
parting salute of thirteen guns was fired in honor of the old 
Confederation, and on the morning of the 4th the era of the 
more perfect Union was announced by the firing of eleven 
guns in honor of- the eleven ratifying States. These salvos 
seemed to mark a meaningless ceremony. There was no one 
of the old Congress to go away, and only eight senators and 
thirteen representatives of the new Congress had come. 
These members at once dispatched letters to their colleagues- 
elect. Soon after April 1st a quorum assembled. On Thurs- 
day, the 9th of April, John Adams received the official letter 
from Congress notifying him of his election, and on the fol- 
lowing Monday he set out for New York. As he passed 
from town to town he was received with honorable attention, 
and, journe^dng on in a splendid carriage, he reached the capi- 
tal on the 20th and took the oath of office before the Senate 
on the following day. To Mount Vernon had gone as special 



WASHINGTON'S JOURNEY TO NEW YORK. 171 

messenger Charles Thompson, the trusted secretary of the 
Continental Congress throughout its history. On the 14th 
of April Washington received the official letter of his election. 
Two days later he set out for New York. His journey was 
a peaceful, triumphal j^rocession. At Alexandria, at Wil- 
mington, at Philadelphia, at Trenton, at Princeton, at Eliza- 
bethtown, at a score of smaller cities and towns, he was 
received with every proof of veneration and affection. His 
journey was a continuous ovation. On the 23d he reached 
New York and stopped at the Franklin House, which had 
been specially fitted up as his residence. Preparations w|Z"e 
now making for his inauguration. The programme was 
made by a congressional committee. The President was to 
be received in the Senate chamber on Thursday, the 30th of 
April. Both houses should then adjourn to the Representa- 
tives' chamber, where Washington should take the oath of 
office administered by the Chancellor of the State of New 
York, R. R. Livingstone. The President, the Vice-President, 
and both houses of Congress should then hear divine wor- 
ship in St. Paul's Church. Tliis simple programme Avas fol- 
lowed. Never before had so many people been in the city. 
Never before had good will, good cheer, and good feeling 
been so universal there. At one o'clock of his inauguration 
day Washington, escorted by tlie military, proceeded from 
his place of residence to the Federal State-House. He en- 
tered the room of the Representatives and was conducted 
to the chair by John Adams. The Vice-President then in- 
formed him that " the Senate and the House of Representa- 
tives were ready to attend him to take the oath required by 
the Constitution, and that it would be administered by the 



172 THE m AUGUR ATT OK 

Chancellor of the State of New York." Washington replied 
that he was ready. He arose and was conducted to an open 
gallery which overlooked Broad Street. At his appearance 
the people hushed to a respectful silence. He came forward, 
Chancellor Livingstone read the oath, Washington repeated 
it, and, stooping, kissed the Bible which the secretary of the 
Senate had raised to his lips. At this instant a flag was run 
up as a signal, and immediately from the Battery there was 
a discharge of artillery. The bells rang out their peals, and 
Livingstone cried, " Long live George Washington, Presi- 
dent of the United States ! " which was taken up by the 
people and which echoed and re-echoed thi'oughout the city. 
Within a few days Washington sent the list of his cabinet 
advisers to the Senate, and they were immediately confirmed. 
Jefferson was called to the department of state, Hamilton to 
the treasury, Knox to the department of Avar ; Randolph 
was made attorney-general.V Congress passed the judiciary 
act on the 24tli of September following, creating one Supreme 
Court and tw^o orders of inferior courts, called Circuit Courts 
and District Courts.* Washington appointed John Jay chief- 
justice, and with him five associate judges. Thus before the year 
closed the Constitution in all of its departments was in proc- 
ess of administration. On the 4th of March, 1789, we date 
the time when the Constitution of the United States became 
the Supreme Law of the Land. It was natural that Washing- 
ton should gather about him in the administration of the new 
government the men who had served with him during the /^ 
war and who had sat wnth him in the Convention of 1787. 
From that company of excellent companions he made his 
*Tlie Appellate Courts were created by act of Marcli 3, 1891. 



THE TEN AMENDMENTS. 1^3 

appointments, and thus it came that those who had been first 
to Itiiiig about the Constitution of ihe United States were the 
first cliosen to administer it. But the difficulties, tlie contests, 
tlie intrigues, the endless debates, and tlie bitter opjiosition 
through which the Constitution passed before it became the 
Law of tlie Land was only an introduction to the more severe 
tests to which it has been put in practical administration 
since that time. About it have contended powerful parties 
in the forum and mighty armies on the field of .battle. Nor 
has it remained unchanged to our day. 

The numerous amendments suggested by the various rau- 
fying conventions in 1787 and 1788 indicate how narrowly 
the Constitution escaped defeat at that time, and also to what 
degree dissatisfaction with its form and with its various 
clauses took definite expression. The common objection to 
the Constitution at that time was the omission of a Bill of 
Rights — a defect which was carefully pointed out in each Con- 
vention. It Avas to remedy this supposed defect that so many 
amendments Avere proposed, about one hundred and thirty in 
all, at the time of its ratification. As soon as Congress as- 
sembled under the Constitution the subject of amendments 
Avas taken up, and before the year 1789 had jjassed the first 
ten amendments Avere proposed by Congress and ratified by 
the States. These ten amendments, made so soon after the 
creation of the instrument itself, have ahvays been considered 
as of a piece Avith the Avork of the Convention. The eleventh 
amendment, declared in force January 8, 1798, Avas made in 
conformity Avith a demand of the State of Georgia and other 
sympathizing States in order to permit a State to escaj^e being 
brought as a defendant before the bar of a federal court. By 



174 NATURE OF THE AMENDMENTS. 

this amendment it lias come al)Out that some of tlie States, 
not being compelled to pay theii" debts, have repudiated them. 
The twelfth amendment was added September 25th, 1804, after 
the first experience of the country with a disputed presiden- 
tial election. The presidential electors at the time of the first 
election of Thomas Jefferson were equally divided between 
him and Aaron Burr, and the election went to the House of 
Representatives. It was thought that the defect in the Con- 
stitution, as it formerly provided for the election of President, 
would be emedied by this amendment; but subsequent experi- 
ence has twice j^roved that the amendment failed as a remedy. 

No problem which arose in the administration of the na-, 
tional Constitution was more difficult than the problem of 
slavery. It was an industrial and a political problem, and at 
last it divided the sentiment of the country. By the thirteenth 
amendment, which became a part of the Constitution Decem- 
ber 18tli, 1865, slavery was abolished in the United States. 
Three years later, on the 28th of July, the Constitution Avas 
again amended so as to confer citizenship on all persons born 
or naturalized in the United States, and to extend the pro- 
tection of the Constitution and the laws over them in all their 
civil rights. In order to prevent discrimination against any 
citizens on account of race, color, or previous condition of 
servitude, the fifteenth amendment was added to the Consti- 
tution March 30th, 1870. This last Constitutional amendment 
forbids any State to discriminate against any of its citizens 
in conferring the right to vote. 

During the century more than seven hundred and fifty 
amendments have at various times been proposed to the Con- 
stitution of the United States. Perhaps no subject on which 



PRINCIPLES AND PRACTICE. 175 

there is a diiference of opinion in the administration of gov- 
ernment has been omitted in these proposed amendments. Of 
these seven hundred and fifty, fifteen have been adopted. 
Wiih each successive year of administration the adoption of 
amendments is increasingly difficult, but without doubt in the 
future, as it has been in the past, the Constitution will from 
time to time be modified so as to adapt itself closely to chang- 
ing or changed conditions of American national life. So long 
as it is adapted to the wants of the nation it will remain the 
Supreme Law of the Land. The principles on which the Con- 
stitution are founded are accepted with harmony, but in 1|jj^e 
administration of those principles individuals and political 
parties differ. The story of the administration of the Con- 
stitution cannot be told in this book; I have sought simply to 
tell the story of the origin, the formation, and the adoption 
of the Constitution. However widely we may differ as to the 
administration of our Supreme Law, I am quite sure that we 
agree that the destiny of the Constitution is bound up with 
the destiny of the people of the United States. 

From the time of the first colonial Assembly in Virginia to 
the time of the ratification of the national Constitution, a 
period of one hundred and seventy years, the American 2:)eople 
were working out the problem of the disposition of the taxing 
pawer, and at last they placed it in their national govern- 
ment, as they had for generations placed it in their local gov- 
ernments, in the lower house of the legislature, the House of 
Representatives. Without doubt the House of Representa- 
tives is the nucleus of the government of the United States, 
the center of our national system. The dispute about taxes, 
through which this country was passing for nearly two cent- 



176 THE CONSTITUTION THE WORK OF CENTURIES. 

uiies, was a dispute as to who should levy thera. For all 
future time there seems to remain a second, and perhaps no 
less critical, question, How shall taxes be levied? how shall 
finance be administered? In the close study of American 
politics it is this question Avhich, if understood, makes clear the 
condition of civil affairs at any time. It may seem to some 
that a hundred' and seventy years is a long time for learning 
that the lower house of a legislature should levy taxes, but 
it should not be forgotten that mankind is a slow scholar. 

I think that, were all the details of our constitutional 
history told, the strange and often contradictory story 
would be considered rather as a romance than as a history, 
for history is commonly supposed to be very grave, very sys- 
tematic, very philosophical, and very true. Napoleon once 
spoke of history as a fable agreed upon. If you who have 
been so forbearing as to read this Story of the Constitution 
have read between the lines you have detected that history 
is never agreed upon; that history is like the men and women 
who make it, quite uncertain, and frequently far from being 
just as people imagine it maybe. You have discovered what 
even so great a man as a recent prime minister of England 
failed to discover when he spoke of the Constitution of the 
United States as being made at a single stroke. Our Consti- 
tution has been centuries a-making and is not yet made. We 
have a written Constitution and an unwritten Constitution, 
and we use them both, and both have grown with our national 
growth and both may decay with our national decay. But 
as Americans Ave lay claim to some discoveries in constitu- 
tional affairs. We have worked out a representative gov- 
ernment after an apprenticeship of nearly two centuries, and 



THE SECOND PART OF THE STORY. 177 

in our daily administration of that form of government we 
are now serving an apprenticeship in administration. Whether 
our apprenticeship in administration sliall be as long as was 
our apprenticeship in working out the principles of represent- 
ative government no man can tell, but, as the administration 
of government proves to be an exceedingly difficult problem, 
there is little doubt that our second period of apprenticeship 
will be much longer than our first. The story of government 
from the time when the first Virginia House of Burgesses as- 
sembled in 1619 till the first national Congress assembled in 
1*789, when told ages hence, will doubtless be less strange and 
perhaps less interesting than that second part of the story of 

government u^Jon which we have entered. 
13 



178 THE CONSTITUIION. 



THE CONSTITUTION OF THE UNITED STATES.* 



We the People of the United States, in order to form a 
more perfect Union, establish Justice, insure domestic Tran- 
quillity, provide for the common defence, promote the gen- 
eral Welfare, and secure the Blessings of Liberty to ourselves 
and our Posterit}^, do ordain and establish this Constitution 
for the United States of America. 

ARTICLE I. 

Section 1. 
All legislative Powers herein granted shall be vested in a 
Congress of the United States, which shall consist of a Senate 
and House of Representatives. 

Section 2. 

The House of Representatives shall be comj^osed of Mem- 
bers chosen every second year by the People of the several 
States, and the Electors in each State shall have the qualifi- 
cations requisite for Electors of the most numerous Branch of 
the State Legislature. 

No Person shall be a Representative who shall not have at- 
tained to the age of twenty-five Years, and been seven years a 
Citizen of the United States, and who shall not, when elected, 
be an Inhabitant of that State in which he shall be chosen. 

* This text follows the original at Washington, except for the amendments, 
whioii are printed in modern form. 



THE CONSTITUTION. 179 

Representatives and direct Taxes shall be apportioned 
among the several States which may be included within this 
Union, according to their respective Numbers, "which shall be 
determined by adding to the whole Number of free Persons, 
including those bound to service for a Term of Years, and ex- 
cluding Indians not taxed, three-fifths of all other Persons. 
The actual Enumeration shall be made within three Years 
after the first Meeting of the Congress of the United States, 
and within every subsequent Term of ten Years, in such 
Manner as they shall by Law direct. The Number of Rep- 
resentatives shall not exceed one for every thirty thoua|p,nd, 
but each State shall have at least one Representative; and 
until such enumeration shall be made, the State of New 
Hampshire shall be entitled to choose three, Massachusetts 
eight, Rhode Island and Providence Plantations one, Con- 
necticut five, New York six. New Jersey four, Pennsylvania 
eight, Delaware one, Maryland six, Virginia ten. North Caro- 
lina five. South Carolina five, and Georgia three. 

When vacancies hap^Jen in the Representation from any 
State, the Executive Authority thereof shall issue Writs of 
Election to fill such Vacancies. 

The House of Representatives shall choose their Speaker 
and other Officers; and shall have the sole Po^ver of Im- 
peachment. 

Section 3. 

The Senate of the United States shall be composed of two 
Senators from each State, chosen by the Legislature thereof, 
for six Years; and each Senator shall have one Vote. 

Immediately after they shall be assembled in Consequence 
of the first Election, they shall be divided as equally as may 



180 THE CONSTITUTION. 

be into three Classes. The Seats of the Senators of the first 
Class shall be vacated at the Expiration of the second Year, 
of the second Class at the Expiration of the fourth Year, and 
of the third class at the Expiration of the sixth Year; so that 
one-third may be chosen every second Year, and if Vacancies 
happen by Resignation or otiierwise, during the Recess of the 
Legislature of any State, the Executive thereof may make 
temporary Appointments until the next Meeting of the Legis- 
lature, which shall then fill such Vacancies. 

No Person shall be a Senator who shall not have attained 
to the Age of thirty Years, and been nine Years a Citizen of 
the United States, and who shall not, when elected, be an In- 
habitant of that State for which he shall be chosen. 

The Vice-President of the United States shall be President 
of the Senate, but shall have no Vote, unless they be equally 
divided. 

The Senate shall ch use their other Officers, and also a 
President pro tempore in the Absence of the Vice-President, 
or when he shall exercise the Office of President of the 
United States. 

The Senate shall have the sole Power to try all Impeach- 
ments. When sitting for that Purpose, they shall be on Oath 
or Affirmation. Wlien the President of the United States is 
tried," the Chief -Justice shall preside: And no Person shall 
be convicted without the Concurrence of two-thirds of the 
Members present. 

Judgment in Cases of Impeachment shall not extend further 
than to removal from Office, and disqualification to hold and 
enjoy any Office of honor. Trust, or Profit under the United 
States: but the Party convicted shall, nevertheless, be liable 



THE CONSTITUTION. ISl 

and subject to Indictment, Trial, Judgment and Punishment, 
according to Law. 

Section 4. 

Tlie Times, Places and Manner of holding Elections for 
Senators and Representatives, shall be prescribed in each 
State by the Legislature thereof; but the Congress may at 
any time b}^ Law make or alter such Regulations, except as 
to the Places of choosing Senators. 

The Congress shall assemble at least once in every Year, 
and such Meeting shall be on the first Monday in December, 
unless they shall by Law appoint a diiferent Day. % 

Section 5. 

Each House shall be the Judge of the Elections, Returns 
and Qualifications of its own Members, and a Majority of each 
shall constitute a Quorum to do Business; but a smaller Num- 
ber may adjourn from day to day, and may be authorized to 
compel the Attendance of absent Members, in such Manner, 
and under such Penalties as each House may provide. 

Each House may determine the Rules of its Proceedings, 
punish its Members for disorderly Behavior, and. Math the 
Concurrence of two- thirds, expel a Member. 

Each House shall keep a Journal of its Proceedings, and 
from time to time publish the same, excepting such Parts as 
may in their Judgment require Secrecy; and the Yeas and 
Nays of the Members of either House on any question shall, 
at the Desire of one-fifth of those Present, be entered on the 
Journal. 

Neither House, during the Session of Congress, shall, Avith- 
out the Consent of the other, adjourn for more than three 



182 THE CONSTITUTION. 

days, nor to any other Place than that in which the two 
Houses shall be sitting. 

Section 6. 

The Senators and Representatives shall receive a Compen- 
sation for their Services, to be ascertained by Law, and paid 
out of the Treasury of the United States. They shall in all 
Cases, except Treason, Felony and Breach of the Peace, be 
privileged from Arrest during their Attendance at the Session 
of their respective Houses, and in going to and returning 
from the same ; and for any Speech or Debate in either House, 
they shall not be questioned in any other Place. 

No Senator or Representative shall, during the Time for 
which he was elected, be appointed to any civil Office under 
the Authority of the United States, which shall have been 
created, or the Emoluments Avhereof shall have been increased 
during such time; and no Person holding any Office under the 
United States, shall be a Member of either House during his 
Continuance in Office. 

Section 7. 

All Bills for raising Revenue shall originate in the House 
of Representatives; but the Senate may propose or concur 
with Amendments as on other Bills. 

Every Bill which shall have passed the Plouse of Repre- 
sentatives and the Senate, shall, before it become a Law, be 
presented to the President of the United States; If he approve 
he shall sign it, but if not he shall return it, with his Ob- 
jections, to that House in which it shall have originated, who 
shall enter the Objections at large on their Journal, and pro- 
ceed to reconsider it. If after such Reconsideration two- 



THE CONSTITUTION. 183 

thirds of that House shall agree to pass the Bill, it shall be 
sent, together with the Objections, to the other House, by 
which it shall likewise be reconsidered, and if approved by 
two-thirds of that House, it shall become a Law. But in all 
such Cases the Votes of both Houses shall be detei'mined by 
yeas and Nays, and the Names of the Persons voting for and 
against the Bill shall be entered on the Journal of each House 
respectively. If any Bill shall not be returned by the Presi- 
dent within ten Days (Sundays excepted) after it shall have 
been presented to him, the same shall be a Law, in like Manner 
as if he had signed it, unless the Congress by their adjo\|}"n- 
ment prevent its Return, in which Case it shall not be a Law. 
Every Order, Resolution, or Vote to which the Concurrence 
of the Senate and House of Representatives may be necessary 
(except on a case of Adjournment), shall be presented to the 
President of the United States; and befoi'e the Same shall 
take Eifect, shall be approved by him, or being disapproved 
by him, shall be repassed by two-thirds of the Senate and 
House of Representatives, according to the Rules and Limita- 
tions prescribed in the Case of a Bill. 

Section 8. 

The Congress shall have Power To lay and collect Taxes, 
Duties, Imposts and Excises, to pay the Debts and provide 
for the common" Defence and general Welfare of the United 
States ; but all Duties, Imposts and Excises shall be uniform 
throughout the United States; 

To borrow Money on the credit of the United States; 

To regulate Commerce with foreign Nations, and among 
the several States, and with the Indian Tribes; 



1S4 TEE constitution: 

To establish a uniform Rule of ISTaturalization, and uniform 
Laws on the subject of Bankrujitcies throughout the United 
States; 

To coin Money, regulate the Value thereof, and of foreign 
Coin, and fix the Standard of Weights and Measures ; 

To provide for the Punishment of counterfeiting the Se- 
curities and current Coin of the United States; 

To establish Post-Offices and post-Roads ; 

To promote the Progress of Science and useful Arts, 
by securing for limited Times to Authors and Inventors 
the exclusive Right to their respective Writings and Dis- 
coveries; 

To constitute Tribunals inferior to the Supreme Court; 

To define and punish Piracies and Felonies committed on 
the high Seas, and Offences against the Law of Nations; 

To declare War, grant Letters of Marque and Reprisal, 
and mal<:e Rules concerning Captures on Land and Water; 

To raise and support Armies, but no Appropriation of 
Money to that Use shall be for a longer Term than two 
Years; 

To provide and maintain a Navy; 

To make Rules for the Government and Regulation of the 
land and naval Forces; 

To provide for calling forth the Militia to execute the 
Laws of the Union, suppress Insurrections and repel Inva- 
sions; 

To provide for organizing, arming, and disciplining the 
Militia, and for governing such Part of them as may be em- 
ployed in the Service of the United States, reserving to the 
States respectively, the Appointment of the Officers, and 



THE CONSTITUTION. 185 

tlie authority of training tlie militia according to the disci- 
pline prescribed by Congress; 

To exercise exclusive Legislation in all Cases whatsoever, 
over such District (not exceeding ten Miles square) as may, 
by Cession of particular States, and the Acceptance of Con- 
gress, become the Seat of the Government of the United 
States, and -to exercise like Authority over all Places pur- 
chased by the Consent of the Legislature of the State in 
Avhich the Same shall be, for the Erection of Forts, Maga- 
zines, Arsenals, Dock- Yards, and other needful Buildings; 
And % 

To make all Laws which shall be necessary and proper 
for carrying into Execution the foregoing Powers, and. all 
other Powers vested by this Constitution in the Government 
of the United. States, or in any Department or Officer thereof . 

SECTioisr 9. 

The Migration or Importation of such Persons as any of 
the States now existing shall think proper to admit, shall 
not be prohibited by the Congress prior to the Year one 
thousand eight hundred and eight, but a Tax or duty may 
be im2:)osed on such Importation, not exceeding ten dollars 
for each Person. 

The Privilege of the Writ of Habeas Corpus shall not be 
suspended, unless when in Cases of Rebellion or Invasion the 
public Safety may require it. 

No Bill of Attainder, or ex post facto Law shall be j^assed. 

No Capitation or other direct Tax shall be laid, unless in 
Proportion to the Census or Enumei-ation herein before 
dii'ected to be taken. 



i86 THE constitution: 

No Tax or Duty shall be laid on Articles exported from 
any State. 

No Preference shall be given by any Regulation of Com- 
merce or Revenue to the Ports of one State over those of an- 
other: nor shall vessels bound to, or from, one State, be 
obliged to enter, clear, or pay Duties, in another. 

No Money shall be drawn from the Treasury, 'but in con- 
sequence of Appropriations made by Law; and a regular 
Statement and Account of the Receipts and Expenditures of 
all public Money shall be published from time to time. 

No Title of Nobility shall be granted by the United 
States: And no Person holding any Office of Profit or Trust 
under them, shall, without the Consent of the Congress, ac- 
cept of any present, Emolument, Office, or Title, of any kind 
whatever, from any King, Prince, or foreign State. 

Section 10, 

No State shall enter into any Treaty, Alliance, or Con- 
federation; grant Letters of Marque and Reprisal; coin 
Money; emit Bills of Credit; make any Thing but gold 
and silver Coin a Tender in Payment of Debts; pass any 
Bill of Attainder, ex post facto Law, or Law impairing the 
Obligation of Contracts, or grant any Title of Nobility. 

No State shall, without the Consent of the Congress, lay 
any Imposts or Duties on Lnports or Exports, except what 
may be absolutely necessary for executing its inspection 
Laws: and the net Produce of all Duties and Imposts laid 
by any State on Imports or Exports, shall be for the Use of 
the Treasury of the LTnited States; and all such Laws shall 
be subject to the Revision and Controul of the Congress. 



THE CONSTITUTION. 187 

No State shall, without the Consent of Congress, lay any 
Duty or Tonnage, keep Troops, or Ships of War, in time of 
Peace, enter into any Agreement or Compact with another 
State, or with a foreign Power, or engage in War, unless 
actually invaded, or in such imminent Danger as will not 
admit of delay. 

ARTICLE II. 

Section 1. 

The Executive Power shall be vested in a President of the 
United States of America. He shall hold his office during 
the Term of four Years, and together with the Vice-Presi- 
dent, chosen for the same Term, be elected as follows: 

Each State shall appoint, in such manner as the Legisla- 
ture thereof may direct, a Number of Electors, equal to the 
whole Number of Senatoi's and Representatives to which 
the State may be entitled in the Congress; but no Senator 
or Representative, or Person holding an Office of Trust or 
Profit under the United States, shall be appointed* an 
Elector. 

*The Electors shall meet in their respective States, and 

* This clause has been amended and superseded by the Twelfth Amend- 
ment to the Constitution. By the provisions of the original clause the per- 
son in the electoral college having the greatest number of votes (provided 
he had a majorit}^ of the whole number of electors appointed) became 
President, and the person having tiie next greatest number of votes became 
Vice-President, thus giving the Presidency to one political party and the 
Vice-Presidency to another. In the year 1800 the Democratic Republicans 
determined to elect Thomas Jefferson, President, and Aaron Burr, Vice- 
President. The result was that each secured an equal number of votes, and 
neither was elected. The Constitution then, as now, provided that in case 
the electoral college failed to elect a President, the House of Representa- 



188 THE CONSTITUTION. 

vote by Ballot for two Persons, ol' whom one at least sliall 
not be an Inhabitant of the same State with themselves. 
And they shall make a List of all the Persons voted for, and 
of the Number of Votes for each; which List they sign and 
certify, and transmit sealed to the Seat of the Government 
of the United States, directed to the President of the Sen- 
ate. The President of the Senate shall, in the presence of 
the Senate and House of Representatives, open all the Cer- 
tificates and the Votes shall then be counted. The Person 
having the greatest Number of Votes shall be the President, 
if such Number be a majority of the whole Number of Elect- 
ors appointed; and if there be more than one who have 
such a Majority, and have an equal Number of Votes, then 
the House of Representatives shall immediately chuse, , by 
Ballot, one of them for Pi-esident; and if no Person have a 
Majority, then from the five -highest on the List, the said 
House shall in like manner jchuse) the President. But in 
\^chusing 'the President, the Votes shall be taken by States, 
the Representation from each State having one vote; a 
quorum for this purpose shall consist of a Member or Mem- 
bers from two-thirds of the States, and a Majority of all 

tives, votin<? as States, should elect. The Federalists distrusted and dis- 
liked Jefferson ; the Democratic Republicans and some of the Federalists 
distrusted and disliked Buir. The vote in the House on the thirt3'-sixth 
ballot gave the Presidency to Jefferson and the Vice-Presidency to Burr. 
In order to prevent a repetition of so dangerous a struggle, the Twelfth 
Amendment, by which the electoral votes are cast separately for the can- 
didates for President and for Vice-President, was proposed by Congress 
December 12, 1803, and declared in force September 25, 1804. Since that 
time the electoral college has been constituted as at present, witli an odd 
number of votes; a tie vote in tlie college is impossible. — The Government of 
the People of the United States, Thorpe, page 272. 



THE CONSTITUTION. 189 

the States shall be necessary to a choice. In eveiy Case, 
after the Choice of the President, the Person having the 
greatest Number of Votes of the Electors shall be the Vice- 
President. But if tlrere should remain two or more who 
have equal Votes, the Senate shalhchuse'jfrom them, by Bal- 
lot the Vice-President. 

The Congress may determine the Time of i^chusing^ the 
Electors, and the Day on which they shall give their Votes; 
which Day shall be the same throughout the United States. 

No Person except a natural-born Citizen, or a Citizen of 
the United States, at the time of the Adoption of this Qo\)^ 
stitution, shall be eligible to the Office of President; neither 
sliall any Person be eligible to that Office who shall not have 
attained to the Age of thirty-five Years, and been fourteen 
Years a Resident within the United States. 

In Case of the Removal of the President from Office, or 
of his Death, Resignation, or Inability to discharge the 
Powers and Duties of the said Office, the Same shall devolve 
on the Vice-President, and the Congress niay by Law jjro- 
vide for the Case of Removal, Death, Resignation, or In- 
ability both of the President and Vice-President, declaring 
what Officer shall then act as President, and such Officer 
shall act accordingly, until the Disability be removed, or a 
President shall be elected. 

The President shall, at stated Times, receive for his Serv- 
ices, a Compensation, which shall neither be increased nor 
diminished during the Period for which he shall have been 
elected, and he shall not receive within that Period, any 
other Emolument from the United States, or any of them. 

Before he enter on the Execution of his Office he shall 



190 THE CONSTITUTION. 

take the following Oatli or Affirmation: — "I do solemnly 
swear (or affirm) that I will faithfull}^ execute the Office of 
President of the United States, and will, to the best of my 
Ability, preserve, protect, and defend the Constitution of the 
United States." 

Section 2, 

The President shall be Commander-in-Chief of the Army 
and Navy of the United States, and of the Militia of the 
several States, when called into the actual Service of the 
United States; he may require the Opinion, in writing, of 
the principal Officer in each of the executive Departments, 
iipon any Subject relating to the Duties of their respective 
Offices, and he shall have Power to grant Reprieves and 
Pardons for Offences against the United States, exce2:)t in 
Cases of Impeachment. 

He shall have Power, by and with the Advice and Consent 
of the Senate, to make Treaties, provided two-thirds of the 
Senators present concur ; and he shall nominate, and by and 
with the Advice and Consent of the Senate, shall appoint 
Ambassadors, other public Ministers, and Consuls, Judges of 
the sui^reme Court, and all other Officers of the United 
States, whose Appointments are not herein otherwise provided 
for, and which shall be established by Law: but the Congress 
may by LaAV vest the Appointment of such inferior Officers, 
as they think proper, in the President alone, in the Courts of 
Law, or in the Heads of Departments. 

The President shall have Power to fill up all Vacancies 
that may happen during the Recess of the Senate, by grant- 
ing Commissions which shall expire at the End of the next 
Session. 



THE CONSTITUTION. 191 

Section 3. 

He shall from time to time give to the Congress Infor- 
mation of the State of the Union, and recommend to their 
Consideration such Measures as he shall judge necessai'v and 
expedient ; he may, on extraordinary Occasions, convene 
both Houses, or either of them, and in Case of Disagreement 
between them, with Respect to the time of Adjournment, he 
may adjourn them to such Time as he shall think proper; 
he .shall receive Ambassadors and other public Ministers; 
he shall take Care that the Laws be faithfully executed, 
and shall commission all the Officers of the Unitq^ 
States. 

Section 4. 

The President, Vice-President, and all civil Officers of the 
United States, shall be removed from Office on Impeachment 
for, and Conviction of, Treason, Bribery, or other high 
Crimes and Misdemeanors. 



ARTICLE III 

Section 1. 
The judicial Power of the United States shall be vested 
in one supreme Court, and in such iuferior Coui'ts as the 
Congress may, from time to time, ordain and establish. 
The Judges, both of the su2:)renie and inferior Courts, 
shall hold their Offices during good Behavior, and shall, 
at stated Times, receive for their Services a Compensa- 
tion, which shall not be diminished during their Continuance 
in Office. 



192 THE CONSTITUTION. 

Section 2. 

The judicial Power shall extend to all Cases, in Law and 
Equity, arising under this Constitution, the Laws of the 
United States, and Treaties made, or which shall be made, 
under their Autliority; — to all Cases affecting Ambassadors, 
other public Ministers, and Consuls; — to all Cases of admi- 
ralty and maritime Jurisdiction; — to Controversies to which 
the United States shall be a party; — to Controversies be- 
tween two or more States; — between a State and Citizens of 
another State; — between Citizens of different States, — be- 
tween Citizens of the same State; — claiming Lands under 
Grants of different States, and between a State, or the Citi- 
zens thereof, and foreign States, Citizens, or Subjects. 

In all Cases affecting Ambassadors, other public Ministers, 
and Consuls, and those in which a State shall be a Party, the 
supreme Court shall have original Jurisdiction. In all the 
other Cases before mentioned the supreme Court shall have 
appellate Jurisdiction, both as to Law and Fact, with such 
Exceptions, and under such Regulations, as the Congress 
shall make. 

The Trial of all Crimes, except in Cases of Impeachment, 

shall be by Jury; and such Trial shall be held in the State 

Avhere the said Crimes shall have been committed ; but 

when not committed within any State, the Trial shall be at 

such Place, or Places, as the Congress may by Law have 

directed. 

Section 3. 

Treason against the United States shall consist only in 
levying War against them, or in adhering to their Enemies, 
fxivinsr them Aid and Comfort. No Person shall be con- 



THE CONSTITUTION. 19o' 

victed of Treason unless on the Testimony of two Witnesses 
to the same overt Act, or on Confession in open Court. 

The Congress shall have Power to declare the Punishment 
of Treason, but no Attainder of Treason shall work Corrup- 
tion of Blood, or Forfeiture, except during the Life of the 
Person attainted. 



ARTICLE IV. 

Section 1. 
Full Faith and Credit shall be given in each State to the^ 
iniblic Acts, Records, and judicial Proceedings of every 
other State. And the Congress may by general Laws pre- 
scribe the Manner in which sucli Acts, Records, and Pro- 
ceedings shall be proved and the Effect thereof. 

Section 2. 

The Citizens of each State shall be entitled to all Privi- 
leges and Immunities of Citizens in the several States. 

A Person charged in any State with Treason, Felony, or 
other Crime, who shall flee from Justice, and be found in 
another State, shall on Demand of the executive Authority 
of the State from which he fled, be delivered up to be re- 
moved to the State having Jurisdiction of the crime. 

No Person held to Service or Labour in one State, under 
the Laws thereof, escaping into another, shall, in Conse- 
quence of any Law or Regulation therein, be discharged from 
such Service or Labour, but shall be delivered up on Claim 
of the Party to whom such Service or Labour may be due.* 

* The Underground Railroad. — Before the abolition of slavery a sys- 
tem of aidiug runaway slaves to reach Canada was perfected in various 



194 THE CONSTJTUlIOJfJ. 

Section 3. 

New States may be admitted by the Congress into this 
Union ; but no new State shall be formed or erected within 
the Jurisdiction of any other State ; nor any State be formed 
by the Junction of two or more States, or Parts of States, 
without the Consent of the Legislatures of the States con- 
cerned, as well as of the Congress. 

The Congress shall have Power to dispose of and make all 
needful Rules and Regulations respecting the Territory or 
other Property belonging to the United States; and nothing 
in this Constitution shall be so construed as to Prejudice any 
Claims of the United States, or of any particular States. 

Section 4, 
The United States shall guarantee to every State in this 
Union a Republican Form of Government, and shall protect 
each of them against Invasion ; and on Application of the 
Legislature, or of the Executive (when the Legislature can- 
not be convened) against domestic Violence. 



ARTICLE V. 

The Congress, whenever two-thirds of both Houses shall 
deem it necessary, shall propose Amendments to this Con- 
stitution, or, on the Application of the Legislatui-es of two- 
parts of the country. From different points on the Canadian frontier to the 
Southern States were secret routes, along wliich, gevierall}^ by night, slaves 
were helped to freedom by persons opposed to slavery. The whole move- 
ment was unlawful at the time, and was popularly known as the " Under- 
ground Railroad." A slave reaching British soil instantly became free. 
— The Government of the People of the United States, p. 2*77. 



THE CONSTITUTION. 195 

thirds of the several States, shall call a Conveiitiun for pro- 
posing Amendments, which, in either Case, shall be valid to 
all Intents and Purposes, as Part of this Constitution, when 
ratified by the Legislatures of three fourths of the several 
States, or by Conventions in three fourths thereof, as the 
one or the other Mode of Ratification may be proposed by 
the Congress ; Provided, that no Amendment, which may 
be made prior to the Year one thousand eight hundred and 
eight shall in any Manner affect the first and fourth clauses 
in the Ninth Section of the first Article ; and that no State, 
without its consent, shall be deprived of its equal Suffi-I^e 
in the Senate. 



ARTICLE VI. 

All Debts contracted, and Engagements entered into, 
before the Adoption of this Constitution, shall be as valid 
against the United States under this Constitution, as under 
the Confederation. 

This Constitution, and the Laws of the United States 
which shall be made in Pursuance thereof; and all Treaties 
made, or which shall be made, under the Authority of the 
United States, shall be the supreme Law of the land; and 
the Judges in every State shall be bound thereby, any Thing 
in the Constitution or Laws of any State to the Contrary 
notwithstanding. 

Tiie Senators and Representatives before mentioned, and 
the Members of the several State legislatures, and all execu- 
tive and judicial Officers, both of the United States, and of 
the several States, shall be bound by Oath or Affirmation, 



196 THE CONSTITUTION. 

to support this Constitution; but no religious Test shall ever 
be required as a Qualification to any Office or public Trust 
under the United States. 



ARTICLE VII. 

The Ratification of the Conventions of nine States, shall 
be sufficient for the Establishment of this Constitution Ijo- 
tween the States so ratifying the Same. 

Done in Convention by the Unanimous Consent of the 
States present the Seventeenth Day of September in the 
Year of. our Lord one thousand seven hundred and eighty- 
seven and of the Independence of the United States of 
America the twelfth. 

In Witness whereof We have hereunto subscribed our 
Names. George Washington, President, 

And Deputy from Virginia. 

The Word " the " being inter-lined between the seventh 
and eighth Lines of the first Page, The Word "Thirty" 
being jDartly written on an Erazure in the fi.fteenth Line of 
the first Page, The Words " is tried " being inter-lined be- 
tween the thirty second and thirty third Lines of the first 
Page and the word " the " being inter-lined between the 
forty third and forty fourth Lines of the second Page. 

Attest, William Jackson, Secretary. 

NEW HAMPSHIRE. CONNECTICITT. 

John Langdon, "Wm. Sam'l Johnson, 

Nicholas G-ilman. Roger Sherman. 

MASSACHUSETTS. 

Nutlianiel Gorham, new york. 

Eufus King. Alexander Hamilton. 



THE GONSTITUTIOK 



197 



NEW JERSEY. 

Wni. Livingston, 
David Brearlej', 
Wm. Paterson, 
Jona. Dayton. 

PENNSYLVANIA. 

B. Franklin, 
Tliomas Mifflin, 
Eob. Morris, 
Geo. Cl3-mer, 
Thos. Fitzsimons, 
Jared Ingersoll, 
James Wilson, 
Gouv. Morris. 

DELAWARE. 

Geo. Read, 

Gunning Bedford, Jr., 
John Dickinson, 
Richard Bassett, 
Jacob Broom, 
James McHenry. 



MARYLAND. 

Dan of St. Thos. Jenifer, 
Dan. Carroll. 

VIRGINIA. 

Johu Blair, 
James Madison, Jr. 

NORTH CAROLINA. 

"Wm. Blount, 

Richard Dobbs Spaight, 

H. "Williamson. 

SOUTH CAROLINA. 

J. Rutledge, 

Charles Cotesworth Pincknej^, 
Charles Pinckney, ^ 

Pierce Butler. ^ 

GEORGIA. 

"William Few, 
Abr. Baldwin. 



In Convention, Mondatj, Sq^temher 17, 1787. 
Prese7it 
The States of 
New Hampshire, Massachusetts, Connecticut, Mr. Hamilton 
from New York, New Jersey, Pennsylvania, Delaware, Mary- 
land, Virginia, North Carolina, South Carolina, and Georgia. 
Mesolved, That the preceding Constitution be laid before 
the United States in Congress assembled, and that it is the 
Opinion of the Convention, that it should afterwards be 
submitted to a Convention of Delegates, chosen in each 
State by the People thereof; under the Recommendation of 
the Legislature, for their Assent and Ratification; and that 
each Convention assenting to, and ratifying the same, should 
give Notice thereof to the United States in Congress as- 
sembled. 



198 TEE CONSTITUTION. 

Mesoloed, That it is Opinion of this Convention that as 
soon as the Conventions of nine States shall have ratified 
this Constitution, the United States in Congress assembled 
should fix a Day on which Electors should be apj)ointed by 
the States which shall have ratified the same, and a day on 
wliich the Electors should assemble to vote for the President, 
and the Time and Place for commencing Proceedings under 
tliis Constitution. That after such Publication the Electors 
should be appointed and the Senators and Representatives 
elected : That the Electors should meet on the Day fixed 
for the Election of the President, and should transmit their 
V^otes certified, signed, sealed and directed, as the Constitu- 
tion requires, to the Secretary of the United States in Con- 
gress assembled, that the Senators and Representatives 
should convene at the Time and Place assigned; that the 
Senators should appoint a President of the Senate for the 
sole Purpose of receiving, opening and counting the Votes 
for President; and, that after he shall be chosen, the Con- 
gress, together with the President, should, without delay, 
proceed to execute this Constitution. 

By the unanimous Order of the Convention, 

George Washington, President. 

W. Jackson, Secretary. 



TEE CONSTITUTION. 199 



ARTICLES IN ADDITION TO, AND AMENDMENT OF, THE CONSTI- 
TUTION OF THE UNITED STATES OF AMERICA.* 

Article 1. 
Congress shall make no law respecting an establishraent 
of religion, or prohibiting the free exercise thereof, or 
abridging the freedom of speech, or of the press; or the right 
of the people peaceably to assemble, and to petition the Gov- 
ernment for a redress of grievances. 

Article 2. % 

A well-regulated militia being necessary to the security of 

a free State, the right of the people to keep and bear arms 

shall not be infringed. 

Article 3. 

No soldier shall, in time of peace, be quartered in any 

house without the consent of the owner ; nor, in time of war, 

but in a manner to be prescribed by law. 

Article 4. 
The right of the people to be secure in their persons, 
houses, papers, and effects, against unreasonable searches and 
seizures, sliall not be violated; and no warrants shall issue, 

* Proposed by Congress and ratified by the legislatures of the several 
States, pursuant to the fifth Article of the original Constitution. 

More than seven hundred amendments to the Constitution have been 
proposed since it was adopted. Several are usuaUy proposed at each session 
of Congress. 

The first twelve articles of amendment to the Federal Constitution were 
adopted so soon after the original organization of the Government under it 
in 1789 as to justify the statement that they were practically contempo- 
raneous with the adoption of the original (Justice Miller, United States 
Supreme Court.) — The Gomrnment of the People of the United States, p. 280. 



200 TEE CONSTITUTION. 

but upon i^robable cause, supported by oa^h or affirmation, 
and particularly describing the place to be searched, and the 
persons or things to be seized. 

Article 5. 
No person shall be held to answer for a capital or other- 
wise infamous crime, unless on a presentment or indictment 
of a grand jury, except in cases arising in the land or naval 
forces, or in the militia, when in actual service, in time of 
war, or public danger; nor shall any person be subject, for 
the same offence, to be twice put in jeopardy of life or limb; 
nor shall be compelled in any criminal case to be a witness 
against himself, nor be deprived of life, liberty, or property, 
without due process of law; nor shall private property be 
taken for public use withaut just compensation. 

Article 6. 
In all criminal prosecutions the accused shall enjoy the 
right to a speedy and public trial, by an impartial jury of 
the State and district wherein the ci'ime shall have been com- 
mitted, which district shall have been previously ascertained 
by law, aisd to be informed of the nature and cause of the 
accusation; to be confronted with the witnesses aga^inst him; 
to have compulsory process for obtaining witnesses in his 
favor ; and to have the assistance of counsel for his defence. 

Article 1. 
In suits at common law where the value in controversy 
shall exceed twenty dollars the right of trial by jury shall be 
preserved; and no fact, tried by a jury, shall be otherwise 
re-examined in any court of the United States, than accord- 
ing to the rules of the common law. 



THE CONSTITUTION. 201 

Article 8. 
Excessive bail shall not be required, nor excessive fines 
imposed, nor cruel and unusual punisliments inflicted. 

Article 9. 

The enumeration in tlie Constitution of certain riglits ishall 

not be construed to deny or disparage others retained by the 

people. 

Article 10. 

The powers not delegated to the United States by the 

Constitution, nor prohibited by it to the States, are reserved 

to the States respectively, or to the people. ^ 

Article 11. 
The judicial power of the United States shall not be con- 
strued to extend to any suit in law or equity, commenced or 
prosecuted against one of the United States by citizens of 
another State, or by citizens or subjects of any foreign 

State.*. 

Article 12. 

The Electors shall meet in their respective States and vote 

by ballot for President and Vice-President, one of whom at 

least, shall not be an inhabitant of the same State with 

themselves; they shall name in their ballots the person voted 

*In the case of Chisholm vs. The State of Georgia the Supreme Court de- 
cided tliat under Article III, § 2, of the Constitution a private citizen of a 
State might bring suit against a State other than the one of which he was a 
citizen. This decision, by which a State might be brought as defendant 
before the bar of a Federal court, was highly displeasing to a majority of 
the States in 1794. On the 5th of March of that year the Eleventh Amend- 
ment was passed by two-thirds of botli houses of Congress, and declared 
in force January 8, 1798. Practically, tlie amendment has been the au- 
thority for the repudiation of debts by several States. — The Government of 
the People of the United States, p. 282. 



202 THE constitution: 

for as President, and in distinct ballots the person voted for 
as Vice-President; and they shall make distinct lists of all 
persons voted for as President, and of all persons voted for 
as Vice-President, and of the number of votes for each, which 
lists they shall sign, and certify, and transmit, sealed, to the 
seat of government of the United States, directed to the 
Pi'esident of the Senate; the President of the Senate shall, 
in the presence of the Senate and House of Representatives, 
open all the certificates, and the votes shall then be counted; 
the person having the greatest number of votes for Presi- 
dent shall be the President, if such number be a majority of 
the whole number of Electors appointed; and if no j^erson 
have such majority, then, from the jDersons having the highest 
numbers, not exceeding three, on the list of those voted for 
as President, the House of Representatives shall choose im- 
mediately, by ballot, the President. But in choosing the 
President the votes shall be taken by States, the representa- 
tion from each State having one vote; a quorum for this j^ur- 
pose shall consist of a member or members from two-thirds 
of the States, and a majority of all the States shall be neces- 
sary to a choice. And if the House of Representatives shall 
not choose a President, whenever the right to choose shall 
devolve upon them, before the 4th day of March next fol- 
lowing, then the Vice-President shall act as President, and 
in case of the death, or other constitutional disability, of the 
President. 

The person having the greatest number of votes as Vice- 
President shall be the Vice-President, if such number be a 
majority of the whole number of Electors appointed; and if 
no person have a majority, then, from the two highest num- 



THE CONSTITUTION. 203 

bers on the list, the Senate shall choose the Vice-President; 

a quorum for the purpose shall consist of two-thirds of the 

whole number of Senators ; a majority of the whole number 

shall be necessary to a choice. 

But no person constitutionally ineligible to the office of 

President, shall be eligible to that of Vice-President of the 

United States. 

Article 13. 

Neither slavery nor involuntary servitude, except as a 
punishment for crime, whereof the party shall have been duh^ 
convicted, shall exist within the United States or any ||lace 
subject to their jurisdiction. 

Congress shall have power to enforce this article by appro- 
priate legislation.* 

Article 14. 

All persons born or naturalized in the United States, and 
subject to the jurisdiction thereof, are citizens of the United 
States and of the State wherein they reside. No State shall 
make or enforce any law which shall abridge the privileges 
or immunities of citizens of the United States; nor shall any 
State deprive any person of life, liberty, or property without 
due process of law, nor deny to any person within its juris- 
diction the equal protection of the laws, f 

* The Emaucipation Proclamation and the events of the Civil "War led to 
the adoption of the Thirteenth Amendment. Its language is substantiality 
the same as that used in the celebrated ordinance of 1787. It was proposed 
April 8, 1864, and proclaimed in force December 18, 1865. 

f The events of the Civil War (1861-65) made necessary an entire recon- 
struction of political society in the United States, to accord with the new 
conditions produced by the abolition of slavery. The object of the amend- 
ment was to confer citizenship upon negroes, and to make it an object to 
all the States to recognize and further this right. It was proposed Juue 8, 



204 THE GONSTITUTIOK 

Rej^resentatives shall be aj)portioned among the several 
States accoi'ding to their respective numbers, counting the 
whole number of persons in each State, excluding Indians not 
taxed. But when the right to vote at any election for the 
choice of Electors for President and Vice-President of the 
United States, Representatives in Congress, the executive 
and judicial officers of a State, or the members of the Legis- 
lature thereof, is denied to any of the male inhabitants of 
such State, being twenty-one years of age, and citizens of 
the United States, or in any w^ay abridged, except for par- 
ticipation in rebellion or other crime, the basis of representa- 
tion therein shall be reduced in the proportion which the 
number of such male citizens shall bear to the whole number 
of male citizens, twenty-one years of age, in such State. 

No person shall be a Senator or Representative in Con- 
gress, or Elector of President and Vice-President, or hold 
any office, civil or military, under the United States, or un- 
der any State, who, having previously taken an oath as a 
member of Congress, or as an officer of the United States, or 
as a member of any State Legislature, or as an executive or 
judicial officer of any State, to support the Constitution of 
the United States, sliall have engaged in insurrection or re- 
bellion against the same, or given aid or comfort to the ene- 
mies thereof. But Congress may, by a vote of two-thirds of 
each Plouse, remove such disability. 

The validity of the public debt of the Lmited States, au- 

185,6^ and declared in force July 28, 1868. The amendment is especially il- 
lustrative of the " reconstruction " ideas in force after the war. The amend- 
ment made the people of the colored race citizens of the United States, and 
conferred upon them the equal protection of the laws. — The Government of 
the People of the United States, p. 284. 



THE CONSTITUTION. 205 

tliorized by law, including debts incurred for payment of 
pensions and bounties for services in suppressing insurrection 
or rebellion, shall not be questioned. But neither the United 
States nor any State shall assume or pay any debt or obligation 
incurred in aid of insurrection or rebellion against the United 
States, or any claim for the loss or emancipation of any slave; 
but all such debts, obligations, and claims shall be held illegal 
and void. 

The Congress shall have jiower to enforce, by appropriate 
legislation, the jjrovisions of this article. 

Article 15. 

The right of citizens of the United States to vote shall 
not be denied or abridged by the United States, or by any 
State, on account of race, color, or previous condition of 
servitude. 

The Congress shall have power to enforce this article by 
appropriate legislation.* 

* " The Constitution of the United States does not confer the right of 
sufifrage upon any one " (Chief- Justice Waite). An amendment was nec- 
essary to prevent the States or the United States from giving preference, in 
the right to vote, to one citizen of the United States over anotlier on account 
of race, color, or previous condition of servitude. "The Fifteentli Amend- 
ment had the effect in law of removing from the State constitutions, or mak- 
ing void, any provision iu them which restricted the right to vote to the 
while race " (Justice Harlan). By the second section Congress is ex- 
pressly empowered to enforce the amendment. It was proposed by Con- 
press February 26, 1869, and proclaimed in force March 30, 18*70. This 
amendment illustrates the liberal character of the Government of the peo- 
ple of the United States, and a striking contrast may now be drawn between 
tiic narrow and somewhat selfish principles of the Federal Government in 
] 789, and the broad and humane principles whicli actuate the nation at the 
present time. — The Government of the People of the United States, p. 286. 



INDEX. 



AdmlnistratlOD of government in the Unit- 
ed States of America, 1776 to 1787, 68. 

in England, 69. 

in the United States of America afier 
1787, 175, 176, 177. 
Articles of Confederation, committee on, 
76, 77, 78. 

character of, 78, 79, 80, 81, 83, 83, 84. 

before the States, 79. 

an anomalous government, 85. 

theory of, 86. 

defects of, 86, 87. 

collapse of, 101, 109. 
Assembly, Colonial, composition of, 16. 

compared to State legislature, 17. 

first general, 25, 26, 27. 

and-Parliament, 29. 

and taxation, 31. 

triumphs over Parliament, 57, 58. 

a precedent in the Constitution, 144, 
145. 

resume, 175, 176. 
Authorities consulted, 9. 

Charters, first Virginia, 18. 

its seal, 19. 

Its failure, 20. 

second Virginia, 20. 

third Virginia, 21, 22. 
Congress, first Continental, 31. 

second, 37, 70. 

Congress of Confederation, 60, 61. 

its acts, 62. 

its delegates, 66, 67. 

its finance, 89, 90, 91, 92, 93, 94, 95. 

lacks of quorum, 101. 

denied adequate powers. 111. 

passes ordinance of 1787, 132. 

ceases to exist, 170. 



1 Constitutions, first State, 38, 39, 40. 

Massachusetts, 1780, 40-46. 

of other States, 46, 

changes in, during the century, 47. 

property qualifications, 48. 

religious qualifications, 49. 

administrative departments, 42. 

legislative departments, 53. ^ 

judicial departments, 54. 

influence of one State on another, 
55,56. 

difference between first and later con- 
stitution, 56. 

New Jersey, 70. 

Virginia, 71. 

Virginia's plan for a national govern- 
ment, 120, 121, 134. 

New Jersey plan, 122. 

Connecticut compromise, 127. 

debate on representation, 128-132. 

compromises in national, 128, 132, 138. 

debate on slavery, 130-138. 

the national Constitution signed, 142. 

presented to Congress, 143. 

origin of national Constitution, 144, 
145, 146. 

before the State ratifying conven- 
tions : Pennsylvania, 150 ; Delaware, 
153 ; New Jersey, 153 ; Georgia, 154 ; 
Connecticut, 154 ; Massachusetts, 
154; New Hampshire, 159, 161; 
Maryland, 1.59; South Carolina, 
160; Virginia, 161; New York, 162; 
North Carolina, 166; Rhode Island, 
167. 

Constitution takes effect, 168. 

amendments to, 173, 174, 175. 

text of the Constitution of the United 
States, 178-305. 



208 

Convention, first American, 30. 
Hartford, 87, 88. 
Annapolis, 106. 
Philadelphia, 107, ct seq. 
ratifying conventions, 150-167. 

Declarations, of 1765, 30. 
of 1770, 33, 71, 75, 76. 

Education, 51. 

Elector, qualifications of, 23, 23, 24, 
48,49. 

Finance, taxation by Parliament, 39. 

during confederation, 89, 90. 

paper money, 91-99. 

tariff, 97. 
Franklin, 73, 73, 105, 115, 138, 139. 



INDEX. 

Hamilton, 74, 125, 163, 105, 173. 



Members of Constitutional Convention, 
111, 113, 113, 114, 115, 116, 117, 118, 119. 

Navigation laws, 96, 97, 103, 135, 136, 137, 
138. 

Revolution of 1776, 28, 39, 31. 

Washington, George, his views on govern- 
ment, delegate to Philadelphia Con- 
vention, 111 ; its president, 119. 

elected President of the United States, 
171. 

his journey to New York, 171. 

inauguration, 172. 

appoints his cabinet, 173. 



THE END. 




003 451 817i^^O 



